Drug Testing Policy

Purpose

To maintain a drug-free workplace that supports the health, safety, and productivity of all employees, consistent with applicable law.

Policy

Using, possessing, manufacturing, distributing, selling, purchasing, or dispensing illegal drugs or controlled substances — on company premises, on company business, or in a manner that negatively affects job performance or the company's interests — is prohibited and subject to disciplinary action, up to and including termination.

Definitions

• Drug includes any federally controlled substance; any drug that is not legally obtainable; a legally obtainable drug that was not legally obtained; and a prescription drug not legally obtained or not used for its prescribed purpose.
• Reasonable suspicion/reasonable cause means the employee's actions, conduct, or appearance give the company reason to believe drug use has occurred.
• Chain of custody refers to the documented handling of a test sample, from collection through analysis and reporting, to confirm results are tied to the correct individual.

Types of testing

• Post-offer. Applicants who receive a conditional offer of employment may be required to complete a drug test as part of the pre-employment medical process, after the offer is made but before the employee begins work. Applicants should be told during the application process that any offer will be conditioned on a successful test result and asked to sign a consent and release form. Refusing to sign or to test results in withdrawal of the offer. (In a growing number of states, a positive test for cannabis alone may not be a permitted basis to withdraw an offer or take adverse action — for example, some states bar reliance on nonpsychoactive cannabis metabolites or require evidence of impairment rather than mere presence of THC. Confirm the current rule for each hiring location with counsel before applying this section.)
• Reasonable-cause testing may be required where, for example: there is reasonable suspicion of on-the-job use, possession, or impairment; reasonable suspicion that drug use has affected job performance; a workplace accident occurs that could plausibly be drug-related, even without obvious symptoms; testing is part of an ongoing treatment program; state or federal law requires it (for example, DOT-regulated positions); or workplace circumstances otherwise warrant it.
• DOT-regulated positions. Employees and applicants in positions requiring DOT certification must also comply with applicable DOT testing regulations.

Employee/applicant authorization is required for each test via a signed consent and release form.

Method and process

• Urinalysis is the standard testing method, collected at a predetermined collection site under documented chain-of-custody procedures.
• All results are reviewed by an independent Medical Review Officer (MRO) — a physician knowledgeable in prescription-drug use and toxicology — who verifies chain of custody, considers alternate medical explanations for a positive result (for example, a valid prescription), and reports findings to the company.

Consequences of a positive result

• Post-offer: if the MRO finds no valid explanation for a positive result, the offer may be withdrawn consistent with applicable law. (Applicable law is doing a lot of work in that sentence for cannabis specifically — see the cannabis note above; some jurisdictions do not treat a positive cannabis test alone as sufficient grounds for withdrawal absent impairment or a safety-sensitive/regulated role.)
• Reasonable-cause: handled case by case. Depending on the circumstances, the company may suspend the employee pending investigation, require an assessment through the Employee Assistance Program (EAP), require successful completion of a treatment program as a condition of continued employment, and/or convert a suspension to a medical leave of absence. Referral to or participation in treatment does not automatically preclude disciplinary action, up to and including termination, even for a first violation. Failure to cooperate with any part of this process is itself grounds for discipline, up to and including termination.

Recordkeeping and confidentiality

• Positive results are retained for a minimum of five years; negative results for a minimum of two years (or longer where required by law).
• All drug-testing records are kept confidential, in a locked file separate from general personnel and medical records.
• Test results are available to the tested individual upon request.

Voluntary self-identification

Employees who believe they may have a substance-use concern are encouraged to seek help voluntarily — through community resources or the company's EAP — before it affects job performance or leads to a policy violation. Voluntarily seeking help does not, by itself, protect an employee from disciplinary action already warranted by a prior policy violation, but early, voluntary self-identification (before any triggering incident) is treated supportively wherever possible.

General provisions

• This policy is interpreted and applied consistent with applicable federal, state, and local law and any collective bargaining agreement.
• Nothing in this policy creates an employment contract or alters at-will status.
• The company may modify this policy at any time.

Responsibilities

Role	Responsibility
Company/HR	Implements and ensures compliance with this policy; maintains confidential records.
Manager	Applies the policy consistently; reports concerns promptly; consults HR before acting on a reasonable-cause situation.
Employee	Complies with this policy; may self-refer to the EAP for a substance-use concern.
Medical Review Officer	Reviews all results, verifies chain of custody, and reports findings confidentially.

Thoughts On Drafting A Drug Testing Policy

The following is background commentary for whoever is drafting or reviewing this policy — not part of the operative policy above, and not something to publish as a rule employees are bound by.

Like most personnel policies, drug and alcohol policies vary widely. Some employee manuals contain simple prohibitions on drug and alcohol use, while others contain detailed provisions relating to drug and alcohol testing at both the pre-employment and post-employment stages. Employers that are subject to drug testing laws or regulations (for example, those subject to DOT regulations) must ensure that their policies conform to the applicable standards.

Most employers should consider adopting some type of drug and alcohol policy in an effort to maintain a drug- and alcohol-free workplace. At minimum, the employee manual may simply state that the employer maintains a place of employment that is free from recognized hazards, such as drug and alcohol use. Employers that have or wish to adopt drug and alcohol testing policies should ensure that their policies and testing procedures meet the following criteria:

• Ensure that the policy suits your workforce and the work being performed. Any employee under the influence of illegal drugs or alcohol is a health and safety threat, but there is a quantum difference between the threat posed by an office clerical worker under the influence and a heavy equipment operator so impaired. Employers should tailor their policies to suit the dangers that drugs and alcohol pose in their own workplace.
• Ensure that the policy contains a detailed description of what is prohibited (not only consuming drugs or alcohol while at work, but reporting to work under the influence). In the drug and alcohol context, it is better to have more, not less, detail — employees should understand the prohibitions and management should follow the policy guidelines consistently.
• Select a qualified, reputable testing facility to perform drug and alcohol testing. Challenges to drug and alcohol tests are common, ranging from disputes over testing technique to disputes over chain of custody; a qualified facility is less likely to be the subject of these challenges and better able to help defend against them.
• Require that samples be taken at the testing facility. The manner in which a drug and alcohol testing program is conducted might otherwise constitute an unlawful invasion of an employee's privacy. A qualified facility has the experience to protect employee privacy and dignity while a sample is provided, and to avoid a confidentiality breach.
• Ensure employees are tested only for alcohol and other controlled substances. The testing should not disclose private medical facts about the employee — an employer can face serious legal challenges if testing discloses conditions such as pregnancy or disability. The testing facility should provide only a positive or negative result; a policy violation should not turn on which substance was involved, only whether a prohibited substance was used.
• Ensure the policy allows for a retest of a positive sample, or a "split-sample" test where the same sample is tested by two different facilities. Either approach reduces the number of challenges to testing results.
• Ensure the policy allows for an employee discussion with a qualified Medical Review Officer (MRO). A positive result may be explained by a lawfully prescribed medication or other lawful substance, and that explanation should go to the MRO, not the employer directly — this limits invasion-of-privacy and discrimination concerns.
• If appropriate, consider limiting the policy's application to employees in safety-sensitive positions.
• Provide for a variety of testing contingencies — post-accident, random, reasonable suspicion, return-to-duty, and follow-up testing.
• Consider establishing an Employee Assistance Program to which employees may be referred; sometimes good employees test positive, and an EAP can help an otherwise competent employee return to work.
• Have employees sign an acknowledgment that they have received and read the policy and consent to being tested.