Masonry Magazine April 1999 Page. 23
Drug Testing in the Workplace
In addition to considerations of philosophy and approach, there are general legal concerns that must be taken into account by any employer in implementing alcohol and other drug testing programs. These concerns vary according to such factors as whether the employer is in the private or public sector, unionized or nonunionized, or in a jurisdiction that has relevant statutory or common law precedent. The law in this area is evolving rapidly, and there are few generally applicable precedents. The U.S. Constitution and its amendments contain language which would dictate how a government-run operation would handle drug testing. Furthermore, a number of states have constitutions that unlike the United States Constitution, contain privacy protections applicable to both public and private sector conduct. A number of states and municipalities have enacted or are considering statutory restrictions regarding workplace drug testing (in addition to general laws of application to particular workplaces), for instance, disability discrimination provisions and collective bargaining requirements. In view of these special considerations, company management will probably want to consult a lawyer who knows about drug testing before developing a program.
In addition to legal considerations, company management will need to make many policy decisions about how a program will be set up and operate. Some questions that will need to be answered include the following:
Who will be tested? (Only applicants? All employees? Only employees in "safety sensitive" positions?)
When will testing be done? (After all accidents? Only after some accidents? When an employee behaves abnormally? On a random basis? As part of a routine physical examination?)
For what drugs will testing be done? (Only for marijuana and cocaine because they are the most commonly used illegal drugs? For all illegal drugs? For alcohol? For prescription drugs that may affect work performance?)
How frequently will testing be done? (Weekly? Monthly? Annually?)
What action will be taken if an applicant tests positive? (Refuse to hire? Tell the applicant why he or she is not being hired? Allow the applicant to be retested? Allow the applicant to reapply after a set time period or after determining that he or she is drug free?)
What action will be taken if an employee tests positive? (Fire all employees who test positive? Refer employees to counseling and treatment after the first positive but fire after the second? Allow employees more than one chance to be rehabilitated before firing?)
What tests will be used and what procedures will be followed to ensure reliability? (How will specimens be collected, identified, and tracked? How will a laboratory be selected? Will a confirmation test be used? Will a physician with appropriate training review and interpret positive test results?)
What precautions will be used to protect an individual's privacy and the confidentiality of test results? (Under what circumstances, if any, will specimen collection be observed for possible tampering? Who will have access to test results?)
Top management must assure that any drug testing program is fair and accurate and that it protects the rights and dignity of the employees. Although drug testing is generally reliable, inaccurate results may occur in the absence of rigorous procedural and technical safeguards.
The Department of Health and Human Services (HHS) has developed and published "Mandatory Guidelines for Federal Workplace Drug Testing Programs" which set standards in this regard. Any employer contemplating a drug testing program is urged to adhere to these guidelines to assure employees and applicants are afforded all possible safeguards. The HHS publication "Model Plan for a Comprehensive Drug-Free Workplace Program" also may be useful and can be adapted to accommodate the specific needs of particular worksites and work forces. Both publications are available through the National Clearinghouse for Alcohol and Drug Information (see sidebar for address).
Drug testing is one of several useful tools that can assist in the prevention and diagnosis of substance abuse, but only as part of a larger agenda and it must be formulated in accordance with workplace needs and conducted using systematic, reliable, and confidential methods.
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