Is It Time to Rethink Your Zero Tolerance Drug Policy?

By William W. Bowser

Background

In my practice, drug and alcohol issues came to the forefront in the 90’s. There was a lot of publicity then about transit workers and big rig drivers causing accidents when they were high.

The Department of Transportation (“DOT”) responded by adopting regulations 5161819684_6b310a493b_zrequiring CDL drivers to be tested for drugs under various scenarios. These scenarios included pre-employment, post-accident, and at random. Every employer with at least one CDL driver had to adopt a pretty comprehensive drug and alcohol policy.  I drafted a lot of them.

Once the CDL drivers were covered, employers started expanding the scope of these policies to cover other employees. The stated purpose was to have an efficient and productive workplace and to protect the public.

Growth of the Zero Tolerance Policies

As the number of employers expanded testing of employees, the policies became less tolerant of illegal drug use.

While “zero tolerance” policies perhaps reflected society’s view toward drug use, I believe that the DOT regulations indirectly encouraged such an intolerance. The DOT regulations did not mandate a person with a positive drug test be fired; however, they did require an employee who was going to be retained to be evaluated by a Substance Abuse Professional (“SAP”), follow the recommended treatment plan and be subject to random testing for a year.

Some employers didn’t want the bother. It was simpler to just terminate the employee.  Others worried that keeping an employee with a positive test — even a top performer — would establish a “precedent” that would have to be followed in the future and would expose them to discrimination lawsuits by employees who were terminated.

Development of a Drug Free Workplace Program

It seems clear that a zero tolerance testing policy alone is not sufficient today. Rather, employers need a drug-free workplace program.

We are in a very tight job market. As a result, employees are hard to find and expensive to replace if they are terminated.  Some employers tell me that they turn down many otherwise qualified applicants who can’t pass the pre-employment drug screen.

Employers, in addition to providing testing for employees, need to take steps that keep current employees from becoming addicted to drugs. They also need to help those who have an issue to get treatment. In this regard, Employers should:

  • Educate employees on dependence and addiction and let them know the risks of prescription opiates.
  • Make sure that employees are aware of, and use, Employee Assistance Programs, before they have a positive test. It is also important to reduce the stigma of using the EAP.
  • Ensure that supervisors are trained to identify when an employee may be impaired at work.

In addition to these steps, Employers also need to take a look that their current drug testing policy to ensure that they are providing a safe work environment. When reviewing a drug policy, keep these questions in mind:

  • Is it testing for the right drugs? Many employers’ policies do not test for synthetic opioids like OxyContin and the like.
  • Is zero tolerance the way to go? Some employers are now providing the option of a “last chance agreement” before termination. These agreements require an employee to complete treatment as directed by a SAP, and be subjected to random testing for a period of time after return to work.
  • Are employees being held accountable? Make sure the policy places responsibility on employees taking prescription drugs to identify the risk of impairment and to work with their supervisor to reduce risk by taking leave or moving them to a less safety-sensitive position.