Should employers discontinue drug-testing programs? Recently two experts debated this topic in an article in the June/July/August 2018 issue of HR Magazine. The article is only available to members of SHRM.
One expert, Jim Reidy, an employment lawyer and shareholder in the Manchester, N.H., office of Sheehan Phinney Bass & Green PA, argued that employer-drug testing programs were indeed becoming obsolete.
The other expert, Danna Hewick, SHRM-SCP, vice president of human resources at USSI Inc., a cleaning and janitorial services company based in Bethesda, Md., argued that employer drug-testing programs were critical for workplace safety. We agree with the opinions of Ms. Hewick.
Jim Reidy observed that while pot was still classified as an illegal substance under federal law, many states have moved toward legalizing the drug. Later in his comments in the article he admits that “positive results for such screens are at an all-time high”. Well, isn’t that the point behind an employer drug testing employees? If people are high on pot they are a danger to themselves, co-workers and members of the public if they are working for your organization. And, the only way to find out if they are high is to perform drug tests.
He references a comment made to him by an HR professional who thinks that employers shouldn’t consider what employees do on their own time. However, the effects of pot, and resulting distortions in judgment, can last up to 12 hours to 24 hours or more after use. This means they could have smoked in the morning before work and be on the job high on pot.
Jim Reidy does admit that drug testing “is still performed routinely—and appropriately—for workers in safety-sensitive positions, both before and during employment.” So the crucial question is what does Jim Reidy consider a safety-sensitive position. He references DOT testing of truck drivers as a legitimate position for which to perform drug tests.
But, what about a restaurant worker who, under the influence, cuts themselves and bleeds in your food? What about a worker who is performing a medical test on someone and a mistake could cause injury? What about construction workers in a high rise building? What about electrical workers working on your house? What about an employee who drives to pick up office supplies or brings deposits to the bank and is in a vehicle representing your organization? And, on and on. The state of Connecticut has a list of almost 500 occupations that are safety sensitive
Hopefully you see our point. In our opinion, drug testing is important for virtually any position where a mistake could cause injury to themselves, co-workers or members of the public.
Jim Reidy states that “HR professionals and hiring managers are having difficulty filling positions and are thus removing any barriers that might exclude otherwise qualified people from the workplace.” So the answer is lower the bar and let anyone who fogs a mirror into your workplace?
Jim Reidy states “In addition, many employers don’t see a return on investment when they weigh the costs of random and pre-employment testing against the results”. Oh really? One illegal drug user will cost your firm $13,000 according to SHRM. This is due to increased accidents, increased time off from work and increased use of your health insurance program. A random drug test program can result in a return on investment of 3 to 4 times the cost of drug testing.
Jim Reidy states that “Another reason that employers are increasingly reluctant to test for drugs is the potential legal challenges that could come with screening, including from employees claiming that organizations did not follow proper notice, testing or sample custody procedures. Those claims could involve disability, race or age discrimination, or invasion of privacy.” Well, the way to manage that exposure is to simply comply. We thought the job of a good lawyer was to help employers navigate rules and regulations. Following the logic in this statement to its conclusion means employers might as well close up shop in order to avoid the risk of lawsuits in conducting their business.
