Drug Testing: What Are My Rights and Responsibilities as an Employer

It’s safe to say that employers will remember 2015 as the year of marijuana.

With varied forms of legalization in effect throughout 26 U.S. states, marijuana has now become one of the country’s fastest-growing industries.

But in the world of human resources, it’s become a complex puzzle.

From medicinal marijuana to outright legalization, employers across the country are scrambling to create effective drug-testing policies that don’t violate ever-changing state laws or crush bottom lines.

Still dazed and confused? Here are some tips you need to know before your drug testing policy disappears in a cloud of smoke.

1. Marijuana is still illegal

One reason drug testing has become such a complicated issue is because marijuana remains illegal on a federal level as a schedule 1 drug under the Federal Controlled Substances Act.

What this means is you still have the right to keep your workplace drug-free, but may be vulnerable to state laws if marijuana is legal where your business resides.

In Colorado, state politicians have been working to define a set of drug-testing guidelines. Amendments 20 and 64 allow employers to retain their existing drug policies. Amendment 64 also allows companies to implement zero-tolerance policies.

In late 2014, Washington D.C. unanimously passed a law limiting employers from drug testing until a conditional offer has been made to a candidate.

Although you have the authority to implement a drug testing policy, it’s best to consult with an HR or legal professional who can outline any possible state or federal laws that may affect your ability to drug test your applicants or employees. This will minimize your risk of legal implications and public relations issues.

2. Is drug testing right for your business?

Drug testing can be a cost-effective way to promote a safe workplace for employees and clients. You get comfort in knowing your employees are clear-minded with the ability to put their best foot forward each day.

An established drug testing program can increase productivity with reduced absenteeism, accidents and turnover among employees.

One downside to drug testing is that some may view it as an invasion of privacy and lack of trust from the employer.

If you’re already legally-mandated to administer drug tests, don’t stop. Positions considered safety sensitive by state law likely require drug testing.

Once you’ve made your decision, consult a trusted HR or legal advisor to ensure your policy complies with local and state laws.

3. Review your policy

Your drug testing policy needs to be clearly defined. It should identify who gets tested, when and under what circumstances. It should also specify your testing procedures and disciplinary consequences.

Here are some things to take into consideration:

– When to test

The frequency of testing could determine the effectiveness of your policy.

If you implement pre-employment testing, then you would want to be consistent and test each candidate in the same position after an offer of employment has been made.

Random testing can be performed unannounced throughout the year. The selection process should be decided by computer software. Some states require you to use a third-party for the selection. Verify under what circumstances you may randomly test employees legally in your state.

Post-accident testing may be necessary for government-regulated safety-sensitive positions. In the event of an injury or fatality, an employee should be tested for the presence of drugs within 32 hours if state law allows.

And for your new hires, it’s recommended (and in some states required by law) to only conduct pre-employment drug tests after an offer of employment has been made.

Employers should implement a drug testing program that is in compliance with applicable state laws, and in alignment with their business needs.

– Drug-testing methods

The different methods of drug testing range in cost and accuracy. For example, a person’s urine sample is typically cheaper to test than a hair sample.

Some methods may be restricted by state regulations. For example, oral fluid and blood testing is illegal in certain states.

Additionally, make certain your policies meet the Americans with Disabilities Act’s regulations with reasonable accommodations provided for people with disabilities. This was a $102,000 mistake for Kmart when a candidate was unable to provide a urine sample because of a kidney disease.

4. Inform managers, employees

Communication to your employees is the most important factor in the process.

After distributing copies of your policy, find a way to educate your employees. Whether it’s a meeting or memo, make sure everyone gets updated. Once in place, provide an opportunity to ask questions.

As an HR best practice, allow a minimum of 30 days between implementation and enforcement of your policy. However, check with your individual state regulations. Some states may require a longer wait period before enforcement can begin.

5. What happens if an employee fails the drug test?

The consequences of a failed or missed drug test should be clear in your policy.

Any test results must be reviewed by a medical review officer.

If permitted by your state, you have the option of implementing a zero tolerance policy. This would allow you to terminate anyone who fails a drug test.

Businesses in “second-chance” states may be required to offer employee assistance program (EAP) services. Typically, this means that anyone who fails a drug test must attend counseling and later pass a subsequent drug test within a specified time frame. Otherwise, it could be grounds for termination.

Remember: Marijuana laws are relatively new and evolving throughout the United States. It’s your responsibility to make sure your drug testing program is in compliance with applicable state laws.

Planning and implementing a drug testing program isn’t easy.

Learn how a PEO can help you build a drug testing program designed to minimize potential liability and keep your business in compliance with applicable regulations. Download our free e-book, HR Outsourcing: A Step-by-Step Guide to Professional Employer Organizations (PEOs).

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james

if you inform your employer that you have a cocaine problem , are the allowed to drug test you, even though they know that you have issues?

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Taliah

Do i as the employee have a right to see the results of my drug test?

Insperity Blog

Hi Taliah – Yes, you have the right to see the results of your drug test. The first step would be for you (the employee or potential hire) to authorize the drug test so you know your rights. For employers, there is an obligation to provide you with the positive test results and then determine what the next steps would be; whether that is termination of employment, rescinding an offer of employment, suspension, written warning or a referral to drug/alcohol counseling.

Insperity Blog

Hi Linda, That’s great that the information from our post gave you a new perspective on the challenges involved with workplace drug testing. Hope the information can help your father as well! Please have him reach out to us at blog@insperity.com if we can be of further assistance to him (or you). Thank you for your feedback!

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linda Prin

It never occurred to me that legalizing marijuana could make company drug testing a challenge. I think it important to support a drug free workplace. I think I will discuss this with my father who runs his own company and see if he would like to use your information . Thank you for sharing http://www.aimoccupationaltesting.ca