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# 3330 - SUBSTANCE ABUSE IN THE WORKPLACE AND YOUR EMPLOYMENT PRACTICES

In light of federal and state laws and regulations regarding substance abuse in the workplace, Millisor & Nobil recommends that every employer develop a comprehensive policy with the help of legal counsel.

It is estimated that drug and alcohol abuse in the workplace costs Americans as much as $100 billion per year as the result of lost productivity, increased on-the-job accidents, higher insurance premiums, and employee theft. Institute on Drug Abuse finds that substance abusers are:

• Late to work three times more often than the average employee.
• Three times more likely to receive sickness benefits.
• Four times more likely to be involved in on-the job accidents.
• Five times more likely to file workers' compensation claims.
• 16 times more likely to be absent from work.

Given these direct and indirect costs of substance abuse, controlling or eliminating substance abuse has become a high priority for many employers, large and small alike.

This concern applies as well in the equipment industry, where drug and alcohol abuse poses safety and productivity concerns. Unlike public employers, where there are constitutional right-of-privacy issues, employers in private industry can test for substance abuse. As a result, many employers feel they can no longer afford to take a casual approach to solving substance abuse problems within their work forces.

There are, however, legal, practical, and employee-relation pitfalls that an employer can encounter who takes a haphazard approach to substance abuse problems. These include the following:

• The Supreme Court of Ohio has recognized drug and alcohol abuse as handicaps under Ohio's anti-discrimination laws.
• An improperly run program can subject an employer to legal challenges on discrimination charges, or if unionized, a contract violation.
• The general counsel of the National Labor Relations Board (NLRB) takes the position that unionized employers have a duty to bargain with the union representing their employees before implementing or changing a drug testing program.

Accordingly, it is necessary to observe certain guidelines in implementing a substance abuse program.

Alcohol/Drug Abuse Handicaps under Ohio Law

Ohio statute prohibits employers from discriminating against applicants or employees on the basis of a handicap. Where an employee or applicant for employment is handicapped, the employer must consider whether the individual, though handicapped, can safely and substantially perform the essential function of the job in question. By affirming that alcoholics and drug addicts are handicapped, to the extent that a dependency exists and has not yet compromised work skills, we seek to deal with the problem at a point where these individuals are still productive members of society, can still be helped, and still have the incentive to help themselves. Beyond this point, the statute does not protect the chemically dependent individual.

Drug and alcohol testing is a two-edged sword. On the one hand, such testing enables an employer to identify employees with problems and provide assistance to those employees. On the other, the employer's very knowledge that an employee has a drug or alcohol problem can be used as a basis for a discrimination claim if an employer thereafter takes adverse employment action against such an employee.

The handicap discrimination law dictates that an employer carefully utilize the results of drug and alcohol testing. For example, an employer may respond to a "positive" drug test on an employee by giving that individual the option of entering an employee assistance program (EAP) for treatment of alcoholism or drug dependency. Extending this option minimizes the risk for a handicap discrimination claim.

Testing Applicants versus Testing Employees

Given the restriction involving unions and union notification, a private employer has the right to require both applicants and current employees to submit to drug or alcohol testing. The limitation is what it can do with the results of such testing.

Drug testing of applicants poses some limitations. Refusing to hire an applicant solely on the basis of a positive drug screening test could provide a basis for a handicap discrimination claim by that applicant. Therefore, an employer's prehiring screening should articulate a legitimate, nondiscriminatory reason for not hiring any applicant who tests positive on a drug screen.

For example, an employer could ask certain questions on the employment application or pre-employment questionnaire requiring the applicant to identify whether he has used any drugs (including prescription, over-the-counter, or illegal drugs) in the last 30 days. The employment application or pre-employment questionnaire should also require the applicant to acknowledge that any false or incomplete answers on his application will be a basis for a refusal to hire or discharge. If the applicant denies use of drugs but tests positive in a pre-employment drug screening, then an employer could base refusal to hire on the applicant's falsification of the application.

With respect to current employees, the employer must determine whether he or she is going to conduct drug testing either randomly or based only on "reasonable suspicion." Unless an employer reasonable suspects a rampant drug problem within the work force, random drug testing is generally NOT recommended. It leads to legal challenges, either by the union or in private lawsuits, and union organizing efforts. A testing program based on "reasonable suspicion" is as likely to correct substance abuse problems in the work place without the adverse employee relations impact.

"Reasonable suspicion" can be based on a variety of factors, including:

• Physical impairment such as slurred speech, glassy or blood-shot eyes, or an unsteady gait;
• A pattern of Monday or Friday absences or tardiness;
• Frequent or unusual requests for advances of pay;
• Tardiness following lunch breaks;
• Manic or shifting moods of the employee throughout the day;
• Intermittent, poor quality work;
• Poor interpersonal relations or friction between co-workers;
• Frequent trips to the water fountain or bathroom;
• Increases in gripes or complaints.

Testing Procedures

Testing for impairment due to alcohol is fairly straight-forward. An alcohol test (breath, urine, or blood) correlates the concentration of alcohol with the level of impairment. Concentration of .10 is normally used as a benchmark for intoxication. The alcohol test should be coupled with witness statements concerning actual on-the-job impairment of the tested employee.

Drug testing (normally urine) is far more complicated. While drug tests can measure the concentration of a substance, the concentration does not always correlate with the level of impairment. For example, a concentration of marijuana can remain detectable in urine for over two weeks, while impairment from use of marijuana may last only 24 hours. Consequently, it is important, with respect to drug testing, that a positive drug test be corroborated by witness statements of actual on-the-job impairment.

It is also critical that any positive drug screen test be confirmed by more rigorous laboratory tests. An Emit Test is the most common screening device and is relatively inexpensive. However, it is not entirely reliable and is prone to "false positives" (i.e. detecting the presence of a drug when one in not truly present or misidentifying a legal drug as an illegal one).

It is a better practice, then, that any positive result on a screening test should be confirmed by a more reliable (and more costly) confirmation test, such as a Gas Chromatography/Mass Spectrometry (GC/MS) test. If an employer is later required to prove that an employee tested positive for drugs, whether in court or in an arbitration, a confirming test will be indispensable.

Implementation of Substance Abuse Programs by Unionized Employers

A unionized employer has several additional considerations when contemplating implementation of substance abuse testing program. First and foremost, the general counsel of the NLRB has taken the position that drug and alcohol testing for current employees is a mandatory subject of bargaining. Consequently, a unionized employer must notify the union and afford them an opportunity to bargain as to whether it will implement testing and, if so, as to the particulars of such testing.

The general counsel for the NLRB also takes the position that even if an employer currently conducts mandatory physical examinations, the addition of substance-abuse testing to that examination procedure constitutes a substantial change in the employees' terms and conditions of employment, and the employer must notify the union and afford it an opportunity to bargain before implementing that change.

Further, the general counsel will not permit an employer to unilaterally implement the testing program even if the union contract contains a broad management rights clause that permits the employer to adopt or change company rules or rules for production, discipline, efficiency, and safety. Rather, it will require a clear and unmistakable waiver of the union's right to bargain over such testing before permitting an employer to unilaterally implement such testing.

If a unionized employer desires to implement a drug or alcohol testing policy, whether during the term of a contract or upon contract expiration, the employer must notify the union and offer to bargain. Under certain circumstances, an employer cannot implement a drug testing program during the term of a contract even after notice to the union unless it first has the union's consent. For example, if the current contract already contains a specific clause dealing with drug or alcohol testing that the employer merely wants to change, then the union may have the right to refuse to bargain over drug testing during the term of the agreement.

Controlling Substance Abuse in the Workplace

It is difficult to provide a "model" substance abuse approach or policy because the needs and circumstances of employers vary greatly. Differences in management philosophies or objectives will necessarily require different approaches to the drug and alcohol problem in the work force. The following checklist is intended to provide a summary of important points to consider in implementing a realistic approach to control substance abuse in your workplace. It is not intended to be all inclusive, or apply to any particular company whether unionized or union free, or provide legal advice. Such advice may only be given when related to a specific employer and a specific factual situation. In no circumstances should a substance abuse policy be implemented without careful review of a competent employment law attorney.

• Adopt a comprehensive substance abuse policy.
• Review with your employment law attorney the legal pitfalls and enforcement of your policy.
• Conduct an educational workshop for all employees before your policy is formally placed in effect.
• Modify your employment application to include a statement informing job applicants that they may be tested for drugs and alcohol and that they must sign a consent form (if applicable).
• Revise your employee handbook or communicate in writing the goals, specific procedures and rules for administering and enforcing this substance abuse policy.
• Contact area drug/alcohol rehabilitation centers and consider establishment of an employee assistance program (EAP).
• Notify your employees in advance, adopt, explain, and publish in your employee handbook a list of causes of conduct for disciplinary action.
• Train your supervisors to coordinate the applicable disciplinary rules with reasonable rehabilitation effort as described in your policy.
• Communicate your new policy to all employees in a positive manner.
• Contact local medical laboratories to determine which are qualified and best suited for performing drug/alcohol tests.
• Initiate strict procedures for taking blood/urine specimens.
• Develop a standard supervisor's report form for drug/alcohol-related incidents and suspicious employee behavior.
• Establish a confidential filing system.
• Finally, be careful in handling an employee who reports to work (or departs from a social party sponsored by your company) in what appears to be a state of intoxication.

-- May 1990, Millisor & Nobil, LLP

NOT HAVING A DRUG POLICY WILL COST YOU

An increasing number of employers are implementing some form of drug testing as part of their comprehensive Drug-Free Workplace Pro-grams. According to statistics provided by the Ohio Bureau of Workers' Compensation, the economic motivations for implementing drug testing programs in most workplaces are beyond dispute:

• Users are absent up to six times as often as non-users.
• Users take three times the normal sick leave.
• Users have four times as many accidents as other employees, and are five times more likely to be injured at work.
• Users are 40% more likely to involve co-workers in accidents they cause.
• Users file five times as many workers' compensation claims.
• Users make twice as many errors.
• Users are tardy twice as often.
• Users work more slowly, at two-thirds of their active potential. 47% of all industrial injuries and 40% of industrial deaths are related to drug and/or alcohol use.

Moreover, the belief that drug users don't work is unfounded. In fact, 74 percent of illegal drug users work (up seven percent since 1992) and 90 percent of alcoholics work. The costs measured in lost productivity while on the job and increased absenteeism totaled more than $82 billion in 1992.* With the emergence and expansion of negligent hiring and retention theories of liability facing employers, drug testing in connection with an effective Drug-Free Workplace Program can help reduce potential costs and insulate an employer from inherent legal actions arising out of injuries to third persons, including co-workers, caused by drug and alcohol users.

While some form of drug testing is advisable for most employers, a poorly implemented or ill-conceived testing program may create more risk than not having a testing program at all. The first step in developing a drug testing program is to know the law. Second, drug testing should only be implemented after the employer has developed:

(1) a carefully crafted Drug-Free Workplace Program addressing legal and practical concerns; (2) an effective education, training and awareness component; and (3) a relationship with a HHS certified testing facility. Finally, in order to maximize the tangible benefits of an effective Drug-Free Workplace Program while minimizing legal risks, drug testing should only be implemented after consultation with your employment counsel.

*Source: National Institute on Alcohol and Drug Abuse

-- May 1999, Millisor & Nobil, LLP