Your human resources department has been searching high and low to find new talent as the region’s job market continues to tighten. They’ve been able to make a number of hires who seem to be good fits. These new employees passed their pre-employment drug screening, they’ve shown up on time every day, you’ve invested time and money in training and it seems you’ve filled a key hole in your workforce.
Then something happens. One of the new hires is involved in a workplace accident. Even though there were no injuries, your policy says those involved have to go for a drug screening. The results come back and your seemingly perfect new hire tests positive for marijuana. What do you do? Does your policy call for zero tolerance and a drug-free workplace? Or do you give the employee a second chance and protect the time and money you’ve invested in recruiting and training?
“It’s actually half and half,” said Debra Auer of the decision companies make when employees fail a drug test.
Auer is president of Wauwatosa-based Express Drug Screening LLC. She focuses on helping companies with their drug and alcohol policies, while her co-owner, Theretha King, handles the operational side of drug testing for the firm.
While some companies opt to simply terminate employees who fail a drug test, “we’re finding more and more trying to help these people,” Auer said.
The federal Substance Abuse and Mental Health Services Administration found 59.5 percent of full-time employees said their employers offered some sort of employee assistance program for drug and alcohol issues. The figure, taken from surveys between 2008 and 2012, was a slight, but significant, increase over the 2003 to 2007 period.
That same report found 81.4 percent of employees were at firms with written policies regarding drug or alcohol use. Auer says she still comes across plenty of employers who do not have a policy in place.
“I don’t see as much testing done in the white collar fields as there should be,” King said, adding she has seen cases where 25 percent of a white collar workforce tested positive when companies initiated drug testing policies.
Auer said in one case, Express Drug Screening did testing on an entire car dealership, from the general manager on down. Thirty percent of the initial tests were positive, with finance managers and higher level office employees among those testing positive. The percentages also declined as the testing went on throughout the year.
She said putting a drug testing program in place can help a company reduce turnover, absenteeism, risks and workers’ compensation claims.
But there’s a difference between having a testing program and having the right one. King said she highly recommends putting post-accident testing in place “for the simple reason that individuals can clean themselves up for a pre-employment test.”
“Any charges or anything to do with the policy needs to be reviewed by an attorney,” Auer said.
In addition to pre-employment and post-accident, employers might also consider testing based on reasonable cause or suspicion, random testing and follow-up tests, in some circumstances. King said employers should also consider whether they will do a five-panel test that covers marijuana, cocaine, amphetamines, opiates and phencyclidine or PCP, or a 10-panel test that covers those drugs and other prescription drugs, too.
Auer said the most common positive result is for marijuana. Surveys by SAMHSA estimate roughly 13 percent of those ages 12 to 17 have used the drug in the past year, rising to around 32 percent for those between the ages of 18 and 25 before falling to 10 percent for those 26 and older. The percentages are similar for Wisconsin.
She also said in her experience, prescription drugs have become the second most common positive result, overtaking cocaine. The SAMHSA survey estimates 6 percent of those 12 to 17 have misused prescription psychotherapeutic drugs in the past year. That figure rises to 15 percent for 18 to 25 year olds and returns to roughly 6 percent for those over 26.
Overall, 36 percent of respondents reported using pain relievers for any purpose, including 4.7 percent who said they misused the drugs.
Paul Secunda, Marquette University Law School professor and director of the labor and employment law program, said it is important to distinguish between employment with the government and with the private sector when it comes to drug testing, noting the former can have certain constitutional considerations.
“When you’re dealing with an employee-employer relationship, you’re dealing with a private interaction,” Secunda said.
Many of the legal challenges to drug testing in the private sector have to do with wrongdoing or privacy, he said. When it comes to privacy, any intrusion would have to be highly offensive to a reasonable person.
Secunda said companies do need to be concerned with how test samples are collected and limit who can see the results to human resources staff and other officers.
“They’re treated with a good amount of confidentially,” he said.
The test also has to be focused on discovering drug use and can’t be used as a fishing expedition to detect other diseases that might alter an employer’s view of the employee.
“Besides that, the general law for the private sector is that employers are able to test for drugs,” Secunda said.
But even though the law gives employers a lot of freedom when it comes to testing, Secunda said it is important to have a policy in place.
“You’re basically opening yourself up to employment discrimination claims,” he said of employers testing without a policy in place.
While some states have laws in place for how drug testing is to be handled, Wisconsin does not. The state does have statutes requiring companies working on public works or utility projects to have written substance abuse prevention policies in place, including random, reasonable suspicion and post-accident drug and alcohol testing.
Though employers have freedom in developing their policies, the application of those policies can potentially cause problems if a former employee seeks unemployment benefits after being fired for misconduct.
State law says misconduct includes admitting to using controlled substances, refusing to take a test or testing positive.
For example, the Wisconsin Labor and Industry Review Commission has found there’s a difference between a refusal and an inability to comply with the testing requirements.
In one 2013 case, a former Oshkosh City Cab Co. employee was too dehydrated to provide a sample. LIRC upheld a decision awarding the woman unemployment benefits, noting other cases where the distinction applied.
The commission found no misconduct in cases in which an employee couldn’t reach a testing site before it closed because of child care issues, when the employee couldn’t locate an open testing facility and when the employee was unable to get a ride until the next day.
In a worker’s compensation case, an employee took a Tylenol 3 pill for pain and inflammation after injuring his ankle. He was treated at an urgent care facility and given work restrictions. After taking those to his employer and telling his manager he’d taken Tylenol 3, he was told to take a drug test, which came back positive for codeine. The man was fired without any investigation into the positive result, which the commission determined was “not fair, just or fit under the circumstances.”
“The applicant’s explanation for what occurred in this matter is entirely credible, it is effectively unrebutted by the employer, and the credible facts do not provide a reasonable basis for his discharge,” the commission noted.