Employers in the construction industry have much to consider when it comes to drug testing. On the one hand there is dealing with new marijuana laws. And on the other hand there is the employers responsibility to maintain a safe working environment.
A recent article by Bradley Arant nicely summarizes the various aspects of the issue. The full article can be viewed here .
The author states that contractors must balance complying with divergent Federal and state laws and maintaining a safe working environment.
The author mentions the employers responsibility under the occupational safety and health act as follows:
“The Occupational Safety and Health Act’s general duty clause requires contractors to maintain a safe jobsite and work environment “free from recognized hazards that are . . . likely to cause death or serious physical harm.” Construction sites already contain a number of hazards that can result in personal injury, and an employee’s impairment due to drugs or alcohol can seriously increase the danger to persons and property. Accordingly, most contractors have zero-tolerance policies that ban the use of alcohol and illegal substances. Although zero-tolerance policies typically permit an employee to avoid adverse employment actions by disclosing the use of prescription drugs prior to a positive drug test, these policies otherwise prohibit the off-site consumption of alcohol or drugs that will result in a positive test. The legalization of medical marijuana in a number of states, such as Mississippi, has made maintaining a zero-tolerance policy more difficult.”
The author highlights the situation in states like Mississippi Connecticut and Arizona. Although these statutes do not prohibit contractors from disciplining employees who consume marijuana, or are under its influence, while on the jobsite, it may be difficult to determine when an employee is actually impaired and a drug test is warranted. This difficulty can give rise to liability for discriminatory drug testing or wrongful employment actions in instances where a contractor is mistaken.
While drug tests can indicate the levels of a drug is a person’s system your article correctly states that a positive drug test may not indicate impairment. This is why it is important for at least two managers to confront an individual they think is impaired by documenting the observed behavior and then having a discussion with the individual and taking appropriate action if necessary. Examples of impaired behavior may be the occurrence of an accident or a near the accident, slurred speech, sleeping on the job, etc. It is also important that the managers take appropriate action to have the individual examined by a medical professional. Many medical conditions can result in behavior that may appear to be under the influence of drugs but may be a serious medical condition
To help navigate these nuanced laws, the author recommends that contractors — especially those with a multi-state footprint — should develop a well-defined drug policy and administer a drug-testing program in a non-discriminatory manner. He also recommends that contractors be consistent in enforcing its drug test policy. We also have a list of steps that can be taken to increase the effectiveness of your drug testing program here.
We strongly recommend that contractors review the article.
James P. Randisi, President of Randisi & Associates, Inc., has since 1999 been helping employers protect their clients, workforce and reputation through the implementation of employment screening and drug testing programs. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. Mr. Randisi can be contacted by phone at 410.494.0232 or Email: info@randisiandassociates.com or the website at randisiandassociates.com
