Guidelines for a Drug-Free Workforce
3rd Edition
Legal Issues
Summary
Ignoring the drug problem in the corporate setting can bring legal
problems. Conversely, reasonable and well-intended drug prevention programs may
also be challenged in arbitration or court. However, experience reveals a
relatively large legal exposure by waiting to address the issue (reactive)
versus potentially small penalties in trying to mitigate the problem of drugs
and alcohol in the workplace (proactive). Ultimately an employer must decide the
potential legal costs from instituting a prevention program and the occasional
legal challenge from an affected employee versus potentially much larger losses
from not instituting a program.
Details
Legal action related to maintaining a drug-free workplace has so far
been concentrated in the following six areas:
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Right to privacy;
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Freedom from unreasonable searches;
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Due process;
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Negligence (including negligent hiring, supervision, libel and
slander);
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Contract law;
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Discrimination (including racial, sexual, and disabilities).
Cases brought under the first three categories usually involve public
employment, although there have been exceptions. Private companies need not be
as concerned about those issues if they already exercise good personnel
practices. However, the last three--negligence, contracts, and
discrimination--clearly apply equally to all employers.
While an employer cannot be guaranteed protection from legal challenge, some
things can be done to minimize successful legal challenges:
-
form employees that drug use on or off the job is a concern. Write
your policy to prohibit employees being at work with "any detectable trace
amount of drugs or alcohol in their system," not "under the influence" or
"impaired." Drug tests detect "presence," not "impairment."
-
Intra-company communications concerning current employees'
performance, conduct or problems should be treated with appropriate
confidentiality. Only management personnel with a "need to know" the particular
situation should be involved. Additionally, managers must be consistent and
thorough in documenting employee performance, investigations, and workplace
observations.
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Minimize negligent hiring by requiring all job applicants to pass a
drug test prior to being hired.
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Minimize negligent retention by routinely testing employees and being
prepared to intervene when a worker is identified as having, or shows signs
indicative of, substance abuse problems.
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Minimize negligent testing by adhering to the testing standards
established by the U.S. Department of Health and Human Services.
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Conduct personal searches only on a limited basis, and obtain clear
documentation of employee consent prior to conducting a search.
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Ensure that workers are not, or do not perceive that they are, being
detained against their will in any workplace investigations of suspected drug or
alcohol use or possession.
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Minimize breach of contract and wrongful discharge claims by following
established policies and revising policies that lack sufficient flexibility to
deal effectively with various confrontational situations.
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Establish your drug- and alcohol-free workplace policy in writing, and
ensure that all employees receive and acknowledge (in writing) receiving a copy
of it.
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