For those of you who aren’t aware 4/20 is commonly referred to as national marijuana day. This is widely said to be either because 420 is the police code for a person smoking marijuana or because it was the day Bob Marley died, however both are incorrect and neither is relevant to this post. What better day than 4/20 to talk about ethical drug testing in the workplace. I know, I know HR always has to be the buzz kill. The fact of the matter is while you may not care what your employees are doing when they
are not at work, you are
ultimately responsible for their safety and the safety of everyone around them while they are at work.
This is why we always recommend that our clients implement a reasonable suspicion and post-accident drug testing policy. Unlike pre-employment and random screenings (which are required in some industries) reasonable suspicion and post-accident focus only on those times when the employee is at work. For example, if someone does use recreational drugs regularly after hours or on the weekend but not before or during work it would be unlikely that you would have cause to test them unless they are displaying signs of being under the influence or are involved in an accident while on the job.
Ethical administration of any drug policy you choose to implement is key so let’s take a quick look at the highlights.
The first step for all of them is to determine who should be tested, for the most part this will be all or none however you can subdivide it by job category if you choose but there needs to be a reason. An example of a reason may be a company who has DOT drivers, the Department of Transportation has its own regulation that guide drug testing with respect to drivers (they have to have pre-employment and randoms) however non-driving staff would not necessarily have to be subject to the random screenings.
Pre-Employment: In addition to consistently testing prospective employees it is also important that you not test them until you have made an offer of employment. You should always make their offer contingent upon successful drug and/or background screen if you are doing either.
Random Tests: The key here is that they need to be truly random, the easiest way to do this is to let your screening company have an employee roster and let them pick who’s turn it is to get tested; alternatively you could use an excel sheet. The risk in choosing to do it yourself is that you may be called upon to show that your system truly is random and that can be quite challenging.
Post-Accident: This category is fairly straight forward any employee who is involved in an accident involving an injury or damage to property would need to take a drug test.
Reasonable Suspicion: This is the category that can get tricky, the challenge is to take something that is largely subjective (one person’s evaluation of another’s behavior) and try to make it as fair as possible. Our rule of thumb is that the suspicious behavior needs to be witnessed by at least two members of management/leadership and then approved by either HR or the President/CEO.
And remember, with the exception of pre-employment testing, you need to drive the employee who is to be tested to the testing center and have them take a cab home. They will also need to stay home from work until the results of the test are received, and if the results come back negative, the employee will need to be paid for any time they were originally scheduled to work.
More and more we are seeing employees who get selected for random drug tests and even some post-accident coming back positive for pot and claiming that they are testing positive because of their legal use in Colorado. This can present a challenge for some employers, some feel that they shouldn’t be punishing an employee for something they did on their own time and was not affecting their job.
From the havenite perspective this is largely up to your discretion as a business owner. Missouri does have a law which protects employees from being penalized for legal activities they do outside of work hours however pot is not legal in Missouri and falls into a grey area if the employee did, in fact, smoke in Colorado where recreational marijuana is legal. Kansas does not have any such law so off work drug use would not be protected.
The main issue in deciding whether or not to forgive a positive test for off duty (presumably legal) drug use is that it is difficult if not impossible to really say when the employee used and whether or not that use was legal. Our only concern here is precedent, if you forgive use that didn’t take place during work hours you need to stick to your decision next time it happens.
This is just an overview, the successful administration of a good drug and alcohol policy protects your employees and everyone who comes into your office. No matter how many employees you have it is always a good idea to be prepared. If you would like help in developing a drug or alcohol policy or processes for its implementation we would be happy to help just give us a call at 913.940.5391.