Drug Testing Trends and State Law Activity

Drug Testing Trends and
State Law Activity
A look at the history of drug testing and what
to expect next
10
C. R. Wright
Does your company say that it tests all applicants for the presence
of illegal drugs? If so, does your company actually require prospec-
tive employees to submit to some form of a drug test? If so, does your
company require drug test results before an individual is actually hired
and begins work? If you answered yes to all three questions, your company
has apparently found a practical way to administer a true pre-employment
drug test policy — and your company is among a small percentage of employers who
have done so. But does your company also test employees randomly or “for cause”
during continued employment? Recent national studies report that only half of
employers test their employees for drugs, and that three-fourths of the drug users in
America are actively employed.
This chapter summarizes the historical development of drug test laws, policies, prac-
tices and regulations since the 1980s and traces recent developments in order to dis-
cuss current trends and developments in state laws governing employer drug testing.
Specific cases and trends are used to provide recommended guidance for employers,
managers and human resources (HR) professionals wishing to remain current and
administer a compliant drug test policy.
How Drug Testing Became Popular Among Employers
It is interesting to review how and when drug tests became popular among Ameri-
can companies. Many companies began their drug test policies in or shortly after the
1980s, when government and public interest in controlling a drug “problem” was
heightened. This interest was fueled by a belief that the use or abuse of drugs was
costing governments and businesses money. Statistics have been claimed to show that
an individual’s use and abuse of drugs correlates to lower productivity and a higher
C. R. Wright is a partner in the law firm of Fisher & Phillips LLP. His practice involves advising cli-
ents on general labor and employment issues, handling employment-related litigation, and present-
ing training seminars for managers and supervisors. He also handles OSHA inspections, affirmative
action audits, charges of discrimination, and wage and hour investigations. Resident in the firm’s
office in Atlanta, Mr. Wright can be reached at cwright@laborlawyers.com.
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Chapter 10: Drug Testing Trends and State Law Activity
chance of accident or injury involving that individual. Persons with drug habits are
said to be greater risks for theft and violence, more prone to accidents, and tend to
have more personal problems that they are likely to blame on an employer. Substan-
tial advertising and marketing campaigns against drugs continue in many forms to
this day.
The “War on Drugs” in the 1980s
Many employers took advantage of the “War on Drugs” and public sentiment against
the use and abuse of illegal and prescription drugs to begin drug testing programs in
the 1980s. President Ronald Reagan signed Executive Order 12564 on Sept. 15, 1986,
banning illegal drug use by federal employees and mandating drug test programs by
federal agencies. The Drug-Free Workplace Act of 1988 required some federal contrac-
tors and all federal grantees to agree to provide drug-free workplaces as a condition of
receiving a contract or grant from a federal agency.
Many states also passed laws encouraging employers to test employees for drugs. Most
such states provided for a reduction in workers’ compensation premiums and benefit
disqualification for workers found to test positive for drug use following a workplace
injury. Many companies decided during this period of time to implement drug testing
as a condition of employment. Some employers went further to require drug testing
of any employee involved in a workplace accident or injury. Some went even further
to implement random or periodic drug testing of all employees.
It was easy during this time for many employers to fire “at will” any employee who
failed a drug test. Public sentiment weighed heavily against anyone accused of fail-
ing a drug test. For example, in the early 1990s I received a call from a local lawyer
who held a high state-level elected position. He pleaded the case of one of his young
constituents who had failed a drug test given by one of my clients. The client was ada-
mant that the decision to terminate employment would stand. The politician, under-
standing the circumstances and reluctant to go public with this issue, said: “Woe be to
anyone who fails a drug test these days — whether the test is right or wrong.”
The Pendulum Swings Back
As time passed and public sentiment eased, during the 1990s and beyond some em-
ployers abandoned or scaled back their drug testing policies and practices. Some state
laws that had been passed to encourage employer drug testing expired or were re-
pealed. Some states passed laws restricting or regulating employer drug test policies.
The public debate about employer drug testing continues today and has influenced
state laws. Courts have also become involved, using principles such as privacy and
due process to regulate employer drug testing. There are a number of organizations
weighing in on the issue of employer drug testing — some for it and some against it.
Time magazine reported in its July 7, 2006, issue that the percentage of employers
requiring employee drug tests continues to drop.
This debate will no doubt continue for some time. Companies must consider many
factors in deciding whether and how to test applicants and employees for drugs. Some
of the factors to be considered in deciding the best drug test practice are applicable
state law, public and employee sentiment, costs and other practical considerations.
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Chapter 10: Drug Testing Trends and State Law Activity
Public or Private Employer?
Private companies are not restricted by constitutional due process and other such
principles in the same way as public or governmental employers. Because of consti-
tutional protections, government employers must demonstrate a substantial special
need to overcome an individual’s privacy rights and require employee drug testing.
For example, in a recent Oregon case a federal judge ruled that a city could not re-
quire a librarian to submit to pre-employment suspicionless drug testing (Lanier v.
City of Woodburn, D. Or., Case No. 3:04-CV-01865-KI, on appeal to 9th U.S. Circuit
Court of Appeals). HR and other managers working for governmental employers
should therefore be aware of the additional restrictions applicable to drug tests in the
public sector and administer policies accordingly.
Policy Considerations
If your company does institute a policy to test applicants or employees for drugs, there
are some basic choices the company must make. These choices will affect the cost to the
company and the perception of the program among applicants and employees.
Type of Test
One choice is what type of test to use. The oldest and most common method is test-
ing urine. It is generally safe, inexpensive and fast. Employers may also consider other
forms of testing such as sweat, saliva, hair or blood testing. These other methods can
be more expensive and subject to challenge. The chart below summarizes some of the
attributes of these test methods for consideration.
Methods Commonly Used for Drug Testing
Urine — Most commonly used method. Either a test card is used or a urine sample is collected and sent
away to a lab. Generally quick and relatively inexpensive. Numerous methods are advertised to help an
individual avoid positive findings (chemicals, heavy consumption of water, fake sample, etc.).
Hair — Accurate. Can detect drug use further back in time depending on hair length and other factors.
Becoming more common among employers.
Saliva — Can generally detect only very recent drug use. Becoming more common because of
convenience and practical issues.
Sweat — Patch method not commonly used or practical for employer purposes.
Blood — More commonly used after some kind of workplace accident. More expensive and less practical
form of testing.
Whom to Test
Some employers test only applicants. Once an applicant makes it to the ranks of the
employed in such an organization, he or she is virtually assured that the chances of
future drug tests are remote and, if so inclined, will resume any drug-related activities
he or she may have temporarily abandoned in order to “pass the test.”
Some employers test employees, but only in the case of an accident, injury or specific
suspicion. This form of “for-cause” testing can be used to limit liability for workers’
compensation claims where allowed by state law. It can also be used to confirm suspi-
cion and provide a reason justifying disciplinary action against a “problem employee.”
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Chapter 10: Drug Testing Trends and State Law Activity
Even if an employee refuses to submit to drug testing under such circumstances, an
effective policy can provide a basis for termination of employment because of the
employee’s failure to cooperate and comply with company policy.
Drug Test Policy Checklist
Does my company have a drug test policy?
❏ Yes
❏ No

If so:


Is it followed?
❏ Yes
❏ No


Do we test applicants?
❏ Yes
❏ No


Do we test employees?
❏ Yes
❏ No



If so:




For-Cause?
❏ Yes
❏ No




Random?
❏ Yes
❏ No
Does applicable state law allow or require the following: (if “yes,” list specific provisions)
Reduction of workers’ compensation premium?
❏ Yes
❏ No
Disqualification of benefits?
❏ Yes
❏ No
Employee notification?
❏ Yes
❏ No
Restrictions on testing (specific procedures)?
❏ Yes
❏ No
Other provisions?
❏ Yes
❏ No
Do I have a reminder calendared to check for
❏ Yes
❏ No
updates or changes to state law?
A small percentage of employers keep employees on guard and discourage employee
drug use by conducting periodic or random drug testing of all employees. If employ-
ees know they may be tested and see this policy carried out regularly, they will be
more inclined to not use or abuse drugs. But it is important to use common sense
before beginning a random or periodic drug test program — many employers have cre-
ated problems by deciding virtually overnight to “randomly” test all employees. On
several occasions, employers have called legal counsel to find out what to do when a
large percentage of employees test positive for drug use following a “surprise” random
test. If you decide to implement a random or periodic drug test program, give employ-
ees adequate notice before actual testing begins (generally 60 to 90 days). Also resist
the temptation to target particular individuals by selecting them for a “random” drug
test. If there is a reason to suspect an individual, refer to the “for-cause” option dis-
cussed above under “Whom to Test.” You should also review the reasons for suspicion
and make sure there are no other legal or practical reasons why options other than
drug testing would be more appropriate.
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Chapter 10: Drug Testing Trends and State Law Activity
Another Day in the Employment Lawyer’s Office
Client: Counselor, I have a problem. I know you recommend that we should test our employees for
drug use. Well, last week I heard a rumor that one of my employees was selling drugs out
back, so I decided to use that policy you wrote for me years ago and drug-test everyone to
find out what is going on here.
Lawyer: O.K., I wish you had called me first. How did it work out?
Client: Well, not too good. Forty percent of my employees failed the test. I heard there was a big
party over the weekend.
Lawyer: Is that so? Well, what is your question?
Client: What should I do? I can’t fire everyone – I would have to shut this place down.
Lawyer: If you had provided warning to employees that you were going to start testing, then the failure
rate would likely have been much smal er. I am not sure why you thought testing for drug use is
a good test for someone reported to be sel ing drugs. I understand as a practical matter that you
cannot fire such a large percentage of your workforce, so that destroys your “zero-tolerance”
policy on drug use. And continuing to employ people you now know to be using il egal drugs
could cause liability problems later, for example in case of an accident involving one of them.
Now let’s discuss some other options…
Bluff or Really Test?
Some employers administer a drug test program based on the following theory: “If the
applicant is told that we test for drugs and he or she remains for the hiring process,
then we really do not have to go to the trouble and expense of actually testing be-
cause he or she probably does not use drugs.” If this is the method your company em-
ploys, talk to someone at a company that actually does test and see what their failure
rate is. If you do not actually test for drugs, word will get around and you will likely
be employing a higher percentage of individuals who do use drugs — the individuals
who did not apply or who were rejected by employers who do test. There is even a
website listing of companies that do not test applicants for drug use, and numerous
internet blogs from individuals sharing such information about employer drug tests.
A Tale of Five Companies
Five companies within the same geographic area produced similar products and hired from essentially
the same labor pool in the mid-1990s. One by one, the five employers implemented pre-employment
drug testing and other drug- and alcohol-related policies. Each time one of the employers implemented a
policy, that employer reported to the local HR group that its positive testing rate was substantially above
the national average and above the average experienced by the previous employer among the five who
had implemented testing. It was obvious what was happening — substance abusers were migrating to the
remaining non-testing employers.
The fifth employer had initial y been reluctant to implement pre-employment drug testing because of the
expense associated with testing. This employer, which had approximately 600 employees, experienced a
turnover rate approaching 100 percent and did not want to spend the $25 to $40 per applicant associated with
drug test programs. Eventual y, the employer learned through applicant interviews that drug-using candidates
openly spoke in the community about the employer being viewed as a “safe haven” for drug-using employees.
This employer final y implemented a drug test policy and was the last of the five companies to do so.
When it began conducting pre-employment drug testing, this employer experienced a 40-percent
positive rate — substantially above the then-national average of approximately 5 percent. Two years
later, however, this employer’s positive test result was close to the national average. Not surprisingly, its
turnover dropped markedly.
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Chapter 10: Drug Testing Trends and State Law Activity
Some Recent State Law Developments
With the information above in mind, the remainder of this chapter lists some examples
of specific requirements imposed by some states. Employers must keep up-to-date to
make sure they are in compliance, because some states may impose penalties such as:
•
making it illegal to make an employee or applicant pay for a drug test;
•
limiting or forbidding drug tests in some circumstances; or
•
requiring certain procedures, notifications or methods for drug testing.
Summaries of state laws in this area containing more specific information and links
can be found at Web sites such as:
•
http://www.dol.gov/asp/programs/drugs/said/StateLawList.asp
•
http://law.enotes.com/everyday-law-encyclopedia/drug-testing-2#select-state-laws.
Medical Marijuana Use
Fourteen states at last count (Alaska, Arizona, California, Colorado, Georgia, Hawaii,
Maine, Maryland, Montana, Nevada, Oregon, Rhode Island, Vermont and Washington)
have legalized or experimented with legalizing medical marijuana use. Other states
have considered legalizing medical marijuana use; some have repealed such laws and
some have such laws pending. In 2005, the U.S. Supreme Court apparently negated
such state laws by ruling 6-3 that the federal government can prosecute crimes involv-
ing marijuana — even those related to marijuana for medical use permissible under
state law (Gonzalez v. Raich, U.S. Supreme Court, June 6, 2005).
Employers may interpret this to feel more certain about refusing to hire or continu-
ing to employ individuals who use marijuana “for medical reasons.” On the other
hand, those individuals may believe that state law provides an excuse or protection for
marijuana use. What is clear is that employers must keep up with the status of appli-
cable laws and make sure substance abuse and drug test policies are compliant as the
debate over the legal use of marijuana continues and laws change.
Definitions of marijuana “use” and other provisions of laws legalizing the use of mari-
juana for medicinal purposes vary from state to state. Many states with laws legalizing
marijuana for medical use prohibit employers from classifying medical marijuana use
as “illegal.” This can provide a basis for claims and lawsuits from individuals disci-
plined for testing positive for marijuana use.
Oregon has provided some guidance about how it defines and applies its law. According
to the Oregon Medical Marijuana Act, employers are not required to accommodate the
“use” of medical marijuana in the workplace. Although a seemingly simple statement,
there has been some disagreement as to what the word “use” meant in the context of
this Oregon law. One Oregon state court judge interpreted “use” to mean having it
in one’s system. An arbitrator disagreed and interpreted “use” more literally to mean
partaking of the drug during working hours or while on company property. An Oregon
federal district court judge reversed the arbitrator’s decision, saying that the arbitrator
should have restricted his analysis and decision to the terms of the collective bargaining
agreement that allowed the company to terminate the employee for using marijuana.
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Chapter 10: Drug Testing Trends and State Law Activity
In early 2005, the Oregon Court of Appeals decided that an employee was entitled
to an accommodation, saying that an employee is not “using” marijuana by simply
having it in his system. In 2006, the Oregon Supreme Court reversed, ruling that the
employee was not actually “disabled” and was therefore not entitled to an accom-
modation. The Oregon Supreme Court stopped short of saying that Oregon’s medical
marijuana program was invalid, leaving employers without clear guidance about how
to treat medical marijuana users in the workplace (Washburn v. Columbia Forest Prod-
ucts, Oregon Supreme Court, May 4, 2006).
The above examples from Oregon illustrate the difficulty employers may face in deal-
ing with employee use of marijuana “for medical reasons.” Because of the U.S. Su-
preme Court ruling and the conflicting state laws and interpretations, this issue is far
from settled.
One other note on medical marijuana use: Be careful about employee attempts at
retroactive application of a prescription. A client recently terminated an employee for
drug use pursuant to its drug testing policy. The employee claimed discrimination on
the basis of medical disability because he had received an authorization for the medi-
cal use of marijuana from a physician. The problem with the employee’s defense? The
medical authorization was received the day after he tested positive for marijuana.
Other cases and examples will no doubt follow as the debate about medical marijuana
use continues and employees seek ways to avoid compliance with employer drug poli-
cies. For now, the employer’s right to refuse to hire and employ users of illegal drugs
appears to be intact — even in the case of marijuana for medical use permitted under
state law. But stay tuned for more developments in the near future as advocates of
marijuana use continue to push and test this issue.
Prove It!
Some states now require employers to prove that employee drug tests comply with
procedures set by state law. For example, in South Carolina the Employment Security
Commission requires employers to prove that employee drug tests comply with spe-
cific procedures before it will disqualify an employee from receiving unemployment
benefits for testing positive for drug use. Following a hearing at which an HR man-
ager described in detail how the employer’s policies met the required state standards,
a state hearing officer found the testimony insufficient, saying that the employer in
order to comply must verify the following:
1)
the sample was collected and labeled by a licensed health care professional or
another individual authorized to collect and label test samples by federal or state
law, including law enforcement personnel;
2)
the test was performed by a laboratory certified by the National Institute on
Drug Abuse, the College of American Pathologists or the State Law Enforcement
Division; and
3)
any initial positive test was confirmed on the specimen using the gas chroma-
tography/mass spectrometry method, or an equivalent or more accurate scientifi-
cally accepted method approved by the National Institute on Drug Abuse.
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Chapter 10: Drug Testing Trends and State Law Activity
Another example of an employer having to prove the adequacy of its procedures
comes from Louisiana. In an August 2003 case (Sanchez v. Georgia Gulf Corp.), a
Louisiana appeals court ruled a chemical company employee who disputed his drug
test, which showed traces of cocaine in his system, could challenge his termination
because the employer violated state regulations on drug testing by failing to send the
test to a third-party medical review officer.
By state law, the medical review officer, a licensed physician, is responsible for receiv-
ing laboratory results generated by an employer or testing entity’s drug test program.
The officer must have knowledge of substance abuse disorders and appropriate medi-
cal training to evaluate a positive test result.
In states requiring such specific procedures, employers should check to see how the
courts and state officials interpret and apply the requirements so as to comply (if pos-
sible) with these stringent standards and successfully defeat challenges to an effective
drug test policy.
Drug and Alcohol Policy Guidance
To the extent allowed by applicable law, the drug and alcohol policy should:
• Require as a condition of employment that applicants or employees not have drugs or prohibited
amounts of alcohol “in their systems”
• Avoid references to being “under the influence” or “impaired,” since those terms may create a higher
legal burden for employers
• State the consequences for testing positive or otherwise violating the policy
• State that, consistent with state and federal law, the employer reserves the right to test “at any time”
and to conduct searches
Employers who perform applicant drug testing should not allow employees to begin work until the test
results and other background check results have been received by the employer. A statement explaining
employment is “conditional” until receipt of the results of background screens is no protection against a
negligent hiring claim.
Conclusion
Employers who so desire can and should test applicants and current employees for
drug use in order to have a safer, more productive workforce and avoid unnecessary
costs associated with employee drug use. In developing, implementing and maintain-
ing an effective drug testing policy, employers must periodically check developments
in state law to stay current in practices and procedures. A clearly worded policy in
compliance with state and other applicable laws provides an employer with a way to
deal effectively with employee drug-use issues that arise in the workplace.
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