Drug Testing Frequently Asked Questions (FAQ)

• Deter employees from abusing alcohol and drugs
• Prevent hiring individuals who use illegal drugs
• Be able to identify early and appropriately refer employees who have drug and/or alcohol problems
• Provide a safe workplace for employees
• Protect the general public and instill consumer confidence that employees are working safely
• Comply with state laws or federal regulations
• Benefit from Workers’ Compensation premium discount programs

There are a variety of circumstances under which an organization may require a drug test. Following are the most common:

Pre-Employment

Pre-employment testing is conducted to prevent hiring individuals who illegally use drugs. It typically takes place after a conditional offer of employment has been made. Applicants agree to be tested as a condition of employment and are not hired if they fail to produce a negative test. However, it is possible for employees to prepare for a pre-employment test by stopping their drug use several days before they anticipate being tested. Therefore, some employers test probationary employees on an unannounced basis.

Reasonable Suspicion

Reasonable suspicion testing is similar to, and sometimes referred to, as “probable-cause” or “for-cause” testing and is conducted when supervisors document observable signs and symptoms that lead them to suspect drug use or a drug-free workplace policy violation. It is extremely important to have clear, consistent definitions of what behavior justifies drug and alcohol testing and any suspicion should be corroborated by another supervisor or manager. Since this type of testing is at the discretion of management, it requires careful, comprehensive supervisor training. In addition, it is advised that employees who are suspected of drug use or a policy violation not return to work while awaiting the results of reasonable suspicion testing.

Post-Accident

Since property damage or personal injury may result from accidents, testing following an accident can help determine whether drugs and/or alcohol were a factor. It is important to establish objective criteria that will trigger a post-accident test and how and by whom they will be determined and documented. Examples of criteria used by employers include: fatalities; injuries that require anyone to be removed from the scene for medical care; damage to vehicles or property above a specified monetary amount; and citations issued by the police. Although the results of a post-accident test determine drug use, a positive test result in and of itself cannot prove that drug use caused an accident. When post-accident testing is conducted, it is a good idea for employers not to allow employees involved in any accident to return to work prior to or following the testing. Employers also need to have guidelines to specify how soon following an accident testing must occur so results are relevant. Substances remain in a person’s system for various amounts of time, and it is usually recommended that post-accident testing be done within 12 hours. Some employers expand the test trigger to incidents even if an accident or injury was averted and hence use term “post-incident.”

Random

Random testing is performed on an unannounced, unpredictable basis on employees whose identifying information (e.g., social security number or employee number) has been placed in a testing pool from which a scientifically arbitrary selection is made. This selection is usually computer generated to ensure that it is indeed random and that each person of the workforce population has an equal chance of being selected for testing, regardless of whether that person was recently tested or not. Because this type of testing has no advance notice, it serves as a deterrent.

Periodic

Periodic testing is usually scheduled in advance and uniformly administered. Some employers use it on an annual basis, especially if physicals are required for the job. Such tests generally are more accepted by employees than unannounced tests, but employees can prepare them by stopping their drug use several days beforehand.

Return-to-Duty

Return-to-duty testing involves a one-time, announced test when an employee who has tested positive has completed the required treatment for substance abuse and is ready to return to the workplace. Some employers also use this type of testing for any employee who has been absent for an extended period of time.

Other

Other types of tests are also used by some employers. For example, follow-up testing or post-rehabilitation testing is conducted periodically after an employee returns to the workplace upon completing rehabilitation for a drug or alcohol problem. It is administered on an unannounced, unpredictable basis for a period of time specified in the drug-free workplace policy. Another type of testing, blanket testing, is similar to random testing in that it is unannounced and not based on individual suspicion; however, everyone at a worksite is tested rather than a randomly selected percentage. Other types of testing include voluntary, probationary, pre-promotion and return-after-illness testing.

Generally, most private employers have a fair amount of latitude in implementing drug testing as they see fit for their organization, unless they are subject to certain Federal regulations, such as the U.S. Department of Transportation’s (DOT) drug-testing rules for employees in safety-sensitive positions. However, Federal agencies conducting drug testing must follow standardized procedures established by the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services (DHHS).

While private employers are not required to follow these guidelines, doing so can help them stay on safe legal ground. Court decisions have supported following these guidelines, and as a result, many employers choose to follow them. These Mandatory Guidelines for Federal Workplace Drug Testing (also called SAMHSA’s guidelines) include having a Medical Review Officer (MRO) evaluate tests. They also identify the five substances tested for in Federal drug-testing programs and require the use of drug labs certified by SAMHSA.

The most common method of drug testing, urinalysis, can be done at the workplace (at a health unit, for example), a doctor’s office or any other site selected by the employer. An employee or applicant provides a sample to be tested. Usually precautions are taken, such as putting blue dye in the toilet and turning off the water supply, to prevent adulteration or substitution of specimens so that collection can be completed in privacy without any direct visual observation by another person. Under SAMHSA’s guidelines, once a sample is provided, it is sent to a certified laboratory. The accuracy of drug tests done by certified laboratories is very high, but this certification applies only to the five substances tested for in Federal drug-testing programs and alcohol.

Who pays for a drug test? Does an employee have to be paid for time spent having a drug test?
According to SAMHSA, an employer normally pays for a drug test. Also, time spent having a required drug test is generally considered hours worked (and thus compensable time) under the Fair Labor Standards Act (FLSA), a U.S. Department of Labor (DOL) regulation, for employees who are covered by the Act. These types of issues are overseen by DOL’s Wage and Hour Division. For further guidance, please contact the closest DOL Wage and Hour District Office.

In most cases it is legal for employers to test employees for drugs. No Federal laws prohibit the practice. However, there are several states that restrict or question an employer’s ability to randomly drug test employees who are not in safety-sensitive positions. Thus, it is very important that employers familiarize themselves with the various state laws that may apply to their organization before implementing a drug-testing program. Furthermore, under certain circumstances, someone with a history of alcoholism or drug addiction may be considered a qualified individual with a disability under the Americans with Disabilities Act (ADA) and other Federal non-discrimination statues. As a result, testing for alcohol without individualized suspicions (e.g. pre-employment or random) is not allowable.

Drug testing is only one component of a comprehensive drug-free workplace program, which also includes a written policy that clearly outlines employer expectations regarding drug use; training for supervisors on the signs and symptoms of drug use and their role in enforcing the policy; education for employees about the dangers of drug use; and an Employee Assistance Program (EAP) to provide counseling and referral to employees struggling with drug problems.

A comprehensive drug-free workplace program contributes to a workplace free of the health, safety and productivity hazards caused by employees’ abuse of alcohol or drugs. By educating employees about the dangers of alcohol and drug abuse and encouraging individuals with related problems to seek help, employers can protect their businesses from such dangers, retain valuable employees and help play a part in making communities safer and healthier.