Masonry Magazine June 1987 Page. 12
DRUG TESTING
by George L. Plumb
MCAA Legal Counsel
Many employers are utilizing some type of mandatory drug testing in order to protect against job applications and employees who use illegal drugs. Fully one-third of all Fortune 500 companies have implemented some type of a testing program and in the Federal sector, President Regan has pressed for some time for a drug screening program. As these drug programs grow, litigation over the legality of the testing procedures will increase. Employers are cautioned to be careful before implementing a drug screening program, however, most commentators are of the opinion that a legal drug screening program can be established.
Employers in the construction industry have an additional consideration in that a drug testing program should not be implemented without first obtaining the consent of the unions that maintain collective bargaining relationships with the employer. It most likely would be an unfair labor practice to implement a drug testing program without union approval.
While there are legal issues to weigh and consider, an employer may decide that the business reasons for implementation of a drug screening program outweigh the potential legal risks. To minimize the prospects of a legal challenge, an employer should consider the following issues in establishing drug testing:
PURPOSE
* do employees use heavy equipment?
* do employees use vehicles for company business?
* are there other safety or liability reasons for a program?
* do employees have access to large amounts of money?
* do employees hold positions of public trust?
* are there other motivational or public relations reasons for a program?
MECHANICS
* who should perform the testing? are they reliable, accurate?
* should employees be tested on company premises or at a hospital or other medical facility?
* should an employee be given a second opportunity to be tested if the first test is positive?
IMPLEMENTATION
* how much advance notice should employees be given before the implementation of the program?
* should the test be required of applicants?
* has the union been notified of the proposed program and, if necessary, has there been discussion with the union?
* how much advance notice should an employee be given before his/her testing date?
* how often should an employee be tested?
RESULTS
* what action should the employer take upon getting positive results for drug use?
* what action should an employer take if an employee refuses to submit to drug screening?
* should the employee be transferred to a less hazardous or risky job?
* should the employee be sent for counselling or given other assistance?
* should the employee be discharged?
* have employees been made aware of the penalties for drug use?
* are the rules being consistently enforced and fairly applied?
* is confidentiality observed?
Answering these kinds of questions may help an employer design and implement a drug screening program that will be legitimately related to its business goals and fair to its employees.
In any case, employers must proceed carefully, since the law in this area is evolving and rapidly changing. While courts decide only those issues presented to them in the context of a particular case, state legislatures, city councils and other governmental bodies may act more quickly to regulate drug testing in the workplace. But no matter how the legal climate might change, the bottom line is that drug screening, which may be subject to regulation, cannot replace good training and supervision, as well as the personal observation of erratic or careless behavior and disciplinary action for such conduct.