Dealing With Federal Laws: Figuring Out How To Drug Test Your Employees

[This is the third in a series of articles by Kim Wilbur, operations manager for a local company.  To view all of Kim’s blogs please visit the Blog Series:  Employee Drug Testing homepage.]

Federal Laws

Now that I want to start drug testing our employees what do I do?  Maybe the question is, “what do I HAVE to do?”  I thought I had better first find out what the laws and requirements are, so I started doing some research.  The federal laws that your business must adhere to will vary depending on the amount of employees you have on staff and the type of business you have.  See below for a brief summary of applicable laws and how they relate to creating a drug-free workplace policy.

Fifteen or More Employees

American with Disabilities Act of 1990

A federal law that protects people with disabilities from discrimination.   The importance of the ADA is to ensure that employers evaluate an individuals’ ability to do the required job tasks and that they make employment decisions based on an individual’s qualifications and performance not the person’s history of drug or alcohol abuse.  For more information see the Department of Labor’s ADA page.

The Civil Rights Act of 1964

This landmark bill prohibits private employers from discriminating against individuals on the basis of race, sex, religion, or nationality.  Employers are required to ensure that their drug free workplace policy and programs treat all workers equally and avoid singling out any particular racial, ethnic, or gender group for drug or alcohol testing or disciplinary action. _____________________________________________________________________________________

Fifty or More Employees

Family and Medical Leave Act of 1993

This act enables employees to take up to 12 weeks of unpaid leave within a 12 month period, due to a serious health problem or a substance abuse problem as long as they have worked for an employer for at least 1 year.   For more information see the Department of Labor’s FMLA page. _____________________________________________________________________________________

Unionized Industries

National Labor Relations Act

This act requires that a drug testing policy that affects union workers, must be negotiated and agreed upon with the union itself.  Even if the employer is mandated to have a policy because of the type of industry it is in, such as a transportation company, the employer must still work closely with the union to determine the specifics of the policy.  For more information see the National Labor Relations Board site here.

Federal Government Contractors and Grantees Drug Free Workplace Act of 1988

This requires Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or grant from a Federal agency.   For more information see this page from the Department of Labor.

Transportation Industry The Omnibus Transportation Employee Testing Act of 1991

States that any employee performing safety-sensitive transportation functions, including ones in the “aviation, trucking, railroads, mass transit, and pipelines industries” are required to be drug and alcohol tested.  Employee drug testing must be done pre- employment, in the event of reasonable suspicion, post-accident, return to duty and follow up, and at predetermined random rates.  For more information see the Department of Transportation’s page.

Department of Defense

All contractors working for the Department of Defense who have access to classified information must create, maintain and enforce a drug free work place policy.  The policies must be consistent with state laws and be agreed to by any relevant labor union.  For more information see this official PDF from the military.

Other Federal Safety Sensitive Organizations

Other organizations that have similar drug testing policies to the US Department of Defense are the U.S. Department of Energy, the National Aeronautics and Space Administration (NASA), and the Nuclear Regulatory Commission.  More information about their policies can be found on each agency’s Web site or in the Code of Federal Regulations.

Again these are basic overviews of the Federal laws that may apply to your business.  To ensure that you are following the appropriate laws and regulations for your business so that you can avoid fines or being sued, you should consult a lawyer.

We hope this helped and that you found it interesting!  Stay tuned for our next installment!

$$$$$ or $? The Cost Saving Potential of Drug Testing

[This is an article by Kim Wilbur, operations manager for a local company.  Kim’s first entry can be read here – “Why Employee Drug Test?  A True Story.”]

A drug free workplace is the safest and most cost-effective.

As mentioned previously, I never thought about drug testing our employees. With such a small staff and no history of issues like the ones with Miss Perfect, it never crossed my mind. But after all of the time spent interviewing and training her, not to mention the financial expense and frustration of dealing with a drug user, I wish we would have spent the few dollars to drug test her before she was hired and before things got out of hand. Would pre-employment drug testing have prevented the frustration and expense? Seemingly so……But you know what they say, hindsight is always 20/20.

If you haven’t had a personal experience similar to mine perhaps reading the below will convince you that drug testing is still a very good idea for your business.

Based on the below findings from Congress, The Drug Free Workplace Act of 1998 was established:

1. 74% of illegal drug users are actually employed.

Again I admit, when I used to think of drug users I pictured people living on the streets, begging for money to get their next fix. This statistic obviously proves otherwise; a majority of drug users hold regular jobs and get regular paychecks. I guess the reality is that drugs aren’t cheap, especially when you’re dependent on them, so a job is necessary to be able to support the habit.

2. Over 50% of the Nation’s workforce is employed by small businesses.

Small businesses, be on the lookout! You can be severely impacted by employing even one drug abusing employee. Unlike larger organizations and corporations, small businesses are not as likely to have drug free policies in place so drug users may specifically seek employment with you. If you haven’t decided already that a drug free workplace policy is a good idea, this should really convince you to put employee drug testing into effect.

3. Illegal drug users and alcohol abusers affect businesses because:

a. they are absent more (66% more)
b. their usage of health benefits is 300% higher
c. there are more workplace accidents – 47% are drug related
d. corrective action in the workplace is 90% higher among drug users
e. they don’t stay – drug users are more likely to quit or get fired from their job.

Ouch, do you really want to hire someone that is not dependable, is a danger to coworkers and his or herself, will cause you more work and headaches and will actually cost you money in the end? I think not.

According to a SAMHSA survey reviewing 2002-2003 employee drug abuse, it costs on average, $2,456 to recruit and fill a standard job position. Depending on your state laws and which types of tests can be administered, drug tests can be purchased from a few dollars for a drug screen up to $100 for a lab test. WOW, which would you prefer to spend, a couple dollars or a couple thousand? And by having a drug free workplace policy in effect, pre employment drug testing will generate even more substantial savings in money, time and productivity further down the line.

Why Employee Drug Test? A True Story

Workplace Drug Testing - An Important Business Consideration

Part 1

Imagine you just hired what you thought was the perfect employee. You interviewed her several times on your own and with other staff and all of you had a great feeling about her. You called all of her professional and personal references and received nothing but positive feedback. She passed her writing and computer tests with flying colors and you know she really wants the job. It seems like a no-brainer!

She works closely with you for the first several weeks training in her new position. She arrives to work at least 10 minutes early every day and always stays late. She pays great attention to your lessons, takes accurate and thorough notes and asks all the right questions. She finishes her projects in a timely manner, usually days before her deadlines. She participates in meetings bringing new ideas and suggestions to the group. She offers to head up the most difficult of projects and completes them quickly and, well, I think you get the idea.

Months go by and your new perfect employee continues to do all the right things. One day she calls in sick and ends up being out for a full week. No big deal, it happens, everyone gets sick every once in a while. After she has been back at work for a few days, you notice her mood has changed and she doesn’t have much to say in the morning staff meetings. Over the next few weeks her work becomes sloppy and incomplete, and she is not finishing her projects on time. She comes in late and leaves early. OK, I think you get the idea again. Well, what do you do?

Obviously you have to confront your employee. Something is going on and you have to look out for her as well as protect your business. You decide to have a sit down and she breaks down in tears admitting that she has been a drug user for years and she thought she could change now that she got this new, great job. You are completely caught off guard as you never suspected such a thing. How do you respond?

In my particular case, oh yeah, this is a true valtabs story, (did I mention that) I proceeded to console her as much as I could, given the tremendous shock that came with her announcement. We discussed her situation at great lengths and by the end of our conversation, she decided it would be best to walk away from the job, and how about this, do it IMMEDIATELY. WOW. Now what? After all of the time spent interviewing, training, etc. she is going to walk away.

It was completely her choice although I must admit, I had no idea at the time of how I would have handled the situation if she didn’t quit. What were the legal constraints? Would we have had to write her up or send her home? Do we mention the drug use in her file or not? Should we just fire her on the spot? Luckily I didn’t have to make a decision, she did.

She gathered her belongings and left the building. She didn’t say good bye to anyone and now was the time to construct a story I could tell to our other employees regarding her leaving. Thankfully Miss Perfect was such an efficient worker (at least in the beginning) that she didn’t take time to share much with the other employees. I created a sick family member as the excuse for her sudden departure.

I decided I had better make sure that nothing had disappeared from her office. I called the credit card company to remove her from the account. OH BOY, what did I find out then? MISS PERFECT NO MORE had racked up almost $600 in gas station and retail store charges. MY GOD, how did all of this happen? She must have known she was going to quit before we had our sit down, obviously. Then the rage started and it was not pretty.

Here lies the question: would pre-employment drug testing have prevented all of this from happening?


This is a guest blog by Kim Wilbur, an operations manager for a local company. Kim will be blogging about her ventures into employee drug testing – how to research the program you want and how to put it together. Please stick around and watch for the next part in the series!