Water Well Journal

January 2016

Water Well Journal

Issue link: http://read.dmtmag.com/i/617280

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Page 45 of 67

S ubstance abuse sadly seeps into the everyday operations of most businesses. According to a 2007 study by the U.S. Department of Labor, 75% of the 17.4 million illegal drug users age 18 and older were employed. And of the 55.3 million adult binge drinkers, nearly 80% were also regularly employed. These statistics make clear it's important for companies to establish safeguards against drug and alcohol abuse in the workplace. Legal Concerns As a matter of law, pre-employment drug testing is gener- ally permitted. As a result, some employers test job applicants for substance abuse because such use may impair job per- formance, increase absenteeism, and create safety hazards. Some federal and state laws require you to have a policy. For example, the U.S. Department of Transportation has a comprehensive requirement for employers to have drug- testing programs for employees who operate a commercial motor vehicle. Employers must administer their drug-testing programs in a uniform manner to avoid the appearance of discrimination and the risk of a potential lawsuit. They also must confirm the accuracy of any drug tests, including having chain-of-custody procedures and tampering safeguards in place. In addition, any applicable state drug testing laws must be followed. There is a key distinction between drug tests and alcohol tests under the Americans with Disabilities Act. The ADA does not consider drug tests to be medical exam- inations, so they may be administered even before a condi- tional job offer is made. In contrast, alcohol testing should only take place after an employment offer has been extended that is conditioned on passing a medical exam, and if it is job-related. The use of medical marijuana is legal in 23 states plus the District of Columbia. In these states, such usage generally is not a justification for a failed drug test. However, employees are still prohibited from using marijuana for any medicinal purposes in the workplace. Researching these laws and tailoring your policy accord- ingly can help you steer clear of fines and potential litigation from employees because of statute breaches. On the other hand, some states allow employers to receive reductions on their workers' compensation premiums if they are enrolled in some type of alcohol- and drug-free program. Having a drug and alcohol policy in place can also protect your company from safety liabilities. This is especially impor- tant for smaller companies that don't have a dedicated human resources person on board. If a worker gets hurt on the job and is sent to the hospital, the hospital may check for drugs and alcohol in the person's system. Without implementation of a company drug policy, the employer could be at risk for liability. Creating a Drug and Alcohol Policy Setting up drug and alcohol tests for employees can be a touchy and even uncomfortable issue, but it's a crucial starting point for creating and rolling out your new drug and alcohol policy. There are four basic circumstances in the workplace that warrant the use of drug testing, which should each be listed in your policy: Job applicants. This is generally the area where most em- ployers begin the process of screening. This rule can also apply to current employees who apply for promotions. Post-accident. If you are suspicious of the circumstances sur- rounding a workplace accident, testing all parties involved could clear you and your company of legal responsibility. However, make sure your policy spells out who will be tested and when. Random employee testing. While random testing can help maintain a drug-free workplace, employers should keep in mind that random isn't necessarily identical with surprise. You can explicitly say in your policy, for example, employees will be subject to a one-in-three chance each year of being tested. You might also consider hiring a third-party entity to random- ly draw names, thus decreasing the chance of discrimination accusations. Be aware some states completely ban random testing. Reasonable suspicion testing. This situation calls for the testing of employees who exhibit reasonable evidence of some kind of drug or alcohol abuse. Employers should provide some kind of professional training for those making the par- ticular evaluations so they know what drug or alcohol abuse looks like. Approaching and Reporting Employees Now that your testing guidelines are in place, the next step should be to focus on the protocol for approaching and report- ing the employees who are suspected of violating the policy. ALEXANDRA WALSH WORKPLACE DRUG AND ALCOHOL TESTING Make sure you have a policy and protocols in place when administering such tests. PEOPLE AT WORK 44 January 2016 WWJ waterwelljournal.com

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