Drug Testing: How Far Can Employers Go?
Issue: July 2010 by Joshua Dalrymple, Esq. in Inside The Magazine, Legal
Substance abuse has reached epidemic proportions in this country, and the effect on employers is significant. The U.S. Department of Health and Human Services reports that in 1997, 73 percent of then-current drug users ages 18 and older were employed. This includes 6.7 million full-time workers and 1.6 million part-time workers.
Unfortunately, these substance abuse problems are not isolated to an individual’s home and personal life. Often, these problems spill over into their work and can become a liability for the employer. Those who engage in a life of substance abuse are far more likely to make a mistake on the job that causes injury or loss of revenue to the employer. The U.S. Department of Labor (DOL) has estimated that drug use costs employers $75 to $100 billion annually in lost time, accidents, health care and workers’ compensation costs.
According to the DOL, small businesses may be particularly disadvantaged by employee drug use. Almost 90 percent of small businesses employ an illicit drug user or heavy drinker, and small businesses are less likely to do any drug testing. The bottom line is that substance abuse is a huge issue for employers, and small business owners are especially at risk.
To combat this ever-growing problem, President Reagan signed an executive order in 1986 making it illegal for federal employees to use illegal drugs on or off duty. This order opened the door for employee drug testing and led to the creation of federal guidelines for workplace drug testing. The Supreme Court, in Treasury Employees v. Von Raab, later upheld the constitutionality of employee drug testing.
Employee drug testing is not without controversy. Ensuring a drug-free work environment through testing necessarily disturbs a person’s right to privacy. For example, testing may reveal information about an employee’s private medical conditions that have nothing to do with illicit drug use. Some argue that drug use alone does not equal impairment. Even if an employee uses drugs, it may not affect his or her ability to perform a job, especially if the drugs were used after work or on the weekends.
Accuracy concerns perpetuate the debate on drug testing. In fact, some inexpensive tests can have error rates of up to 20 percent. Mislabeling information and switching samples may also lead to inaccuracy. In spite of the chance for a false positive test, an employer may take disciplinary action against the employee for any positive test result. Therefore, if a test is inaccurate, an employee may have to incur costs to prove that he or she has not violated an employer’s drug use policy before such a disciplinary action is lifted.
Unfortunately, the Code of Virginia does not provide much guidance to employers on how to implement drug testing. Generally, both employees and applicants can be tested as a condition of employment; however, the employer may not require the employee to pay for the test. An employer often requires a drug test if there is reasonable suspicion of drug use, after an accident or if the employee is in a rehabilitation program. Many employers conduct random or routine tests, such as when an employee is hired, transferred or promoted. However employers choose to test, they must respect the employee’s right to privacy. If drug testing is done and the results are not kept and used responsibly or are released without proper care, then the employee may have a claim for violation of their right to privacy.
In Virginia, there are certain industries and types of employment where drug testing is mandatory. Generally, the testing is required in industries and jobs where public safety is a significant concern such as transportation workers, toxic waste or explosives handlers and workers who operate construction equipment on or near a public highway.
The Commonwealth also provides incentives to private employers who have written drug-testing procedures. One benefit is a discount on workers’ compensation premiums for employers who have implemented a drug-free workplace program. Also, state law prohibits employees who have tested positive from receiving unemployment benefits, and workers’ compensation benefits are not available to workers who are injured as a result of their own drug use.
In any case, every employer who chooses to drug test should use a reputable testing company. The employer should also have a written policy that details prohibited behavior as well as who will be tested and under what circumstances (reasonable suspicion, random or routine) they will be tested. The policy should include the disciplinary actions that will be enforced if the test returns positive results, and should include a plan to mitigate damages in the case of a false positive result. If such a policy is in place and the employer follows the policy, then the courts will generally uphold any action against an employee who tests positive for drugs.