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The following article titled “Why a Written Drug Testing Policy Matters” is authored by the Staff at Current Consulting Group, the number one recognized brand in expert drug testing consulting. This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
Why a Written Drug Testing Policy Matters
By Current Consulting Group Staff
You’ve probably heard the expression, “If it isn’t on paper, it doesn’t exist.” Whether it is a refund from a store or drug testing in the workplace, this saying holds true. Even a compliant drug testing program is susceptible to legal challenges if it is not correctly committed to paper.
The Importance of a Written Policy
The importance of a written policy was made very clear recently in Pennsylvania regarding an employee’s use of over-the counter Cannabidiol (CBD) oil used to manage symptoms related to cancer. Subsequently, she was informed that she tested positive for marijuana and her employment was terminated.¹
The employer’s policy prohibited “being under the influence of drugs or having drugs in one’s system while at work.” The policy also required that “all employees disclose to the employer when taking any drug that poses a significant risk of substantial harm to the health or safety of the individuals or others, or when taking any drug that renders the employee unable to perform the essential functions of the job.”
After being denied unemployment compensation, the employee appealed. The appellate court ruled that she was entitled to unemployment compensation, in part because the employer was not able to prove that she violated the employer’s workplace policy. There was no proof that the CBD oil affected her performance at work in ways prohibited by the policy. Furthermore, the CBD oil that the employee used was not proven to be a controlled substance.
More or Less?
Some details about drug testing may not be immediately evident when crafting a drug testing policy. In many states, such as those where there is no mandatory drug testing statute, an employer may not necessarily have an obligation to include specific details in their policy. However, employers can find good examples in neighboring states whose laws provide more detailed guidance in writing a policy. Including such details might not necessarily guarantee legal protection, but such laws are designed to make the rights and obligations of employers and employees clear.
To include that kind of information in writing, typically makes a company’s drug testing policy stronger.
What Should a Drug Testing Policy Include?
Every drug testing policy, whether required by state law or not, should include the following components:
- Purpose statement that explains the company’s reasons for testing,
- Authorization section that includes contact information for those authorized to answer questions about the company policy,
- Coverage section that spells out who is subject to drug testing,
- Prohibited conduct section that explains the many different behaviors that can trigger a drug test. This might include coming to work under the influence of prohibited substances or even having a positive drug test result, and
- Consequences section that clearly states the possible consequences applicants and employees will face if they violate any of the conditions of the policy.
Of course, a key, indispensable section of any drug testing policy is the section that explains how and when drug testing will be conducted. This includes where the testing will take place (lab or on-site) and with what specimen (urine, oral fluid or hair). It also should cover testing situations such as pre-employment, post-accident, reasonable suspicion, and random testing.
Conclusion
A well-written drug testing policy that takes into account every key policy component as well as the various applicable state laws is critical to the success of a workplace drug testing program. And success is measured by how well a company achieves its drug testing objectives (which are articulated in the policy’s Purpose Statement).
There is a lot to consider, and it may not be something to attempt without the assistance of a compliance expert. It is easy to cut corners such as simply copying and pasting lines from a state law into a document and call it a day. But precedent has made it very clear that you can never be too safe when writing a drug testing policy.
ClearStar is ready to guide employers in the right direction with the development of a comprehensive, state-law-compliant written drug testing policy. Reach out to us for more information.
Endnote:
¹ https://www.leagle.com/decision/inpaco20200511341
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