HR ProFile, Are your Drug Testing Policies up to snuff

ARE YOUR DRUG POLICIES UP TO "DATE"?

Many U.S. employers enforce substance abuse and testing policies at their workplace, and are
well advised to do so. It is widely believed that as more companies exclude from their employment
current drug users, these abusers gravitate toward those employers who do not test. U.S.
Government research confirms that alcohol and substance abuse is a major contributor to
workplace injuries and lost productivity.

While employment and pre-employment drug and alcohol testing may be advisable for most
employers, it is not without potential pitfalls. Carelessly drafted drug and alcohol policies can
produce a false sense of security. For example, some policies prohibit employees from being at
work "under the influence" of controlled substances without also prohibiting off duty drug use or
testing positive for controlled substances. Unfortunately, some employers have been unable to
sustain terminations under such policies despite the evidence of a positive drug test from a testing
lab. This is because a positive drug test often indicates only that the subject has used the controlled
substance sometime in the preceding days, weeks or months, and possibly on his own time.
Thus, a positive test is not necessarily synonymous with "being under the influence or using
controlled substances at work."

Recently, a federal appeals court ruled that policies that prohibit the re-employment of persons
terminated for substance abuse may run afoul of the Americans with Disabilities Act (ADA).
Hernandez v. Hughes Missile Systems Co., 298 F. 3d 1030 (9th Cir. 2002). This court reasoned
that while the ADA does not protect current substance abusers, rehabilitated drug users may be
protected as disabled persons and such a policy can be discriminatory. This case is currently
being considered by the U.S. Supreme Court.

While substance abuse policies are powerful and useful tools, they must be carefully drafted.
Employers who are contemplating adopting or amending substance policies need to ensure the
policy is written to prohibit the kind of conduct that drug testing can actually measure. The employer
should also check to ensure compliance with federal as well as state and local laws. Unionized
employers must also determine whether they have a bargaining obligation before adopting or
amending a drug testing plan.

This articler was prepared with the assistance of attorney Mark J. Stepaniak of Taft Stettinius and
Hollister LLP. We do not intend to give legal advice in this article. In some states this articler may be
considered an advertisement and should be considered an ADVERTISEMENT ONLY. Mr.
Stepaniak can be reached at 513-357-9398 or at stepaniak@taftlaw.com