By: Tristan Armer, Esq.
I have recently taught employers and human resource managers on how to lawfully test their employees for alcohol and drugs in the course of employment. I cover the legal minutia in these sessions to answer the question, “why?”. But because I also know the clarity needed by an employer to make decisions in the daily grind, I have boiled down the main issues into this bullet point summary:
- First, all employers should have a drug testing policy and procedure in place and effect. At a minimum you save 5% on your worker’s compensation premiums.
- Second, employee notice of the policy must be documented. While I encourage consulting an attorney before implementing any company-wide policy, a basic policy presumed by regulation to be acceptable is found at : https://msdh.ms.gov/msdhsite/_static/resources/748.pdf. Go to Section 9 – Standard Language and cut and paste from there.
- Third, always follow the written policy, especially the corner stones of providing timely notice to the employee of test results and maintaining confidentiality of all test results. If you follow these two cornerstones alone, then you will probably never be liable to your employee for improper drug and alcohol testing.
- Fourth, I suggest reading your own policy each time you go through the testing procedures with an employee. To keep your 5% discount, you must either include an employee assistance program or an accessible resource of employee assistance providers and an annual 1-hour employee education with additional 2-hour training for supervisors on your policy.
- Fifth, if an employee has an on-the-job accident, immediately send that employee to a person certified to draw a sample – i.e., a doctor, registered nurse or person certified by the Miss. Dept. of Health. An employer should not obtain any sample independently.
- Sixth, if the employee has a positive test indicating the presence at the time of injury of any schedule I drug or schedule II or III drug without a valid prescription, or alcohol eight one-hundredths percent (.08%) or more by weight, it shall be presumed that the drug or alcohol use was the proximate cause of the injury. Code Ann. § 71-3-121. No worker’s compensation benefits should be voluntarily paid after obtaining such a positive test. For more on the intoxication defense to worker’s compensation benefits, watch this two-minute video: https://youtu.be/B65BJGvu-QY.
- Seventh, the employer then must engage a common-sense approach to determine whether the presence of drugs or alcohol proximately caused the accident and whether the employee is in a safety sensitive job. If yes to either, then the employee can be suspended immediately. Follow your policy for any final termination decision. Be aware of the OSHA rule, but if you have a proper drug free workplace program in place, you should be fine
- Eighth, if a test result is positive for marijuana, then the employer should engage in further fact finding. Take witness’ statements, secure video of the accident, or, secure any other facts and evidence that indicate the employee was high or intoxicated. Remember, a positive test for marijuana metabolites is not the equivalent of demonstrating intoxication.
- Lastly, before making a final discipline decision, the employer should ask itself if the employee has been treated exactly according to policy and exactly as other employees have been treated? If your answer is “yes” to both questions, then I doubt you will see me at my office. But if the answer is “no” to either question, my contact information is on hs-lawfirm.com, because you may need a lawyer in the near future.