An expert in the field explains how to address privacy issues, deal with legal concerns, and get employees' support when implementing drug tests
In a recent government study, 1 in 12 full-time American workers admitted to using illegal drugs within the last 30 days of participating in the survey. Of those individuals, roughly 30% said they would be less likely to work for an employer who does random drug testing. The study is based on data collected during 2002, 2003, and 2004 from a nationally representative sample of 128,000 persons, ages 18 to 64, who participated in the Health & Human Services Dept's National Survey on Drug Use and Health. The study concluded that smaller employers "may provide a safe haven" for workers seeking to avoid drug testing. Nancy Delogu, an attorney at Littler Mendelson in Washington who is an expert on federal and state drug-free workplace issues, says drug use by employees can be profoundly dangerous to a company and its other employees. She spoke recently with Smart Answers columnist Karen E. Klein about how small-business owners can monitor and discourage illegal drug use. Edited excerpts of their conversation follow:
Why is illegal drug use by employees a particular concern for small business?
The cost of drug-testing programs often makes them something that small-business owners don't put on their priority lists. Yet most drug abusers report that they are employed. The study also shows that 60% of drug users say they would not apply for or accept work at a company that has a drug-free workplace program. So that makes me wonder whether the small-business owners are absorbing the lion's share of illegal drug users as their employees.
Have you worked with smaller firms that do implement drug-testing programs?
Yes, certainly. But they tend to be either in a regulated industry where they must do drug-testing by law or in an industry where their clients and customers expect them to test, say, if they're sending employees into customers' homes. The other motivator is a company that's had a trusted employee go horribly wrong and they feel strongly that they don't want to be in that situation again.
Give me an idea of how badly things can go wrong in these situations.
In a worse-case scenario, a client or employee gets harmed. One of my clients does pre-hire drug tests for cable installers and told me they had something like 70% to 80% positive tests, where the usual number is about 5%. They started doing drug tests before hiring after an installer murdered a customer after going into her home. Other terrible outcomes are things like employees coming to work with a weapon, dealing drugs, or engaging in other illegal activity at your place of business.
One of our clients was a contractor who had a piece of heavy equipment disappear over a weekend at a construction site. The owner wanted us to help him implement drug testing because he got reports that the site was "owned" by the Mexican mafia, who used it to do drug deals because his employees gave them access.
And of course, there is a huge issue around long-term employee health problems, absenteeism, and reduced productivity. Additional problems related to drug abuse include employees' appearing unprofessional, higher turnover rates, higher company insurance rates, accidents at work, and stealing in the workplace.
How do you suggest entrepreneurs get started with a drug-free workplace program?
First, decide what you want to accomplish. Pre-hire testing is easy and relatively inexpensive to implement. "Reasonable suspicion" testing also makes a lot of sense. This is where employees are tested after an accident or report of a problem with their performance, and it's done to clear someone's name. Neither of those things involves a big monetary commitment, but it does take a managerial commitment from the top down in the company.
The advantage that a small-business owner has is that he or she can convey the drug-free workplace message quickly and clearly. They can also take advantage of state and local drug education programs, both with employees and with their kids. The important thing is to develop a policy and communicate it to your employees.
What does the business owner do if an employee tests positive for illegal drug use?
They don't necessarily need to terminate that employee. You can allow people to go through evaluation and treatment and develop a return-to-work agreement that involves periodic future testing, so the employer knows that the employee is staying straight. Some surveys of people in drug rehabilitation show that just knowing their employer is holding their job and will be testing them when they return is a powerful motivation. Those people tend to do better in rehab, overall.
Unfortunately, there's a really high recidivism rate for substance abusers. It's something like 80%. And we're still not sure how to effectively treat substance abuse because medical science is still just learning how the brain reacts to certain substances. So the recovery effort is a long one for most people.
Some employers, particularly in small companies where the employees are like family, may worry that drug testing is draconian, lends an atmosphere of distrust, or violates workers' privacy. How do you answer those concerns?
The privacy issue is the most compelling, but there's no reason a drug-free workplace policy needs to invade anyone's privacy. If you use reasonable methods and ensure that employees can talk confidentially to a doctor about prescription medications that could cause a positive result, it becomes a health and safety policy. You can certainly present it in a positive manner.
The thing to remember is that all your employees have rights, including the majority who are not drug abusers. And surveys show that people don't want to work side by side with drug abusers because it puts them in danger and puts extra responsibility on them to pick up the slack for their co-workers who are impaired.
What about legal concerns, such as lawsuits from fired employees, or lawsuits alleging discrimination against job applicants who fail tests?
Well, anybody can sue. But we see very few lawsuits, on average, involving challenges to drug-testing policies. If you follow established testing procedure and do the tests right, they tend to be upheld in court.
In terms of job applicants, you're not going to get hit with discrimination claims for refusing to hire illegal-drug abusers. But if an applicant tested positive maybe two years ago and failed, then they come back and want to reapply after they've been to drug rehab, you could get into trouble if you refuse to even consider them, or re-test them, because they failed in the past. So you have to be fair about it, certainly.
How much do these programs cost?
Drug testing can be costly because you need to contract with a doctor to review the results and confidentially contact employees who've tested positive. Most of them charge a flat fee but it can vary quite a bit. I've heard of the fees running from $25 to $48 each. The best way for small employers to do it is to find a consortium where maybe 30 or 40 small businesses work together to get group rates on physician review and even discounts on employer-sponsored rehab programs. A large pool like that gives all the members of the consortium some control over the cost.
What's the first step an entrepreneur might take to implement a drug-free workplace policy?
Talk to your lawyer and ask about rolling out this program in your company. There's a lot of free information available through the Small Business Administration and the Labor Dept., which provides model policies and education.