What is a Model Drug Free Workplace Program? … Compliance for Employer Drug & Alcohol Testing Programs
… In 1986 President Reagan signed an executive order requiring drug testing for federal employees. In 1989 the federal Department of Transportation requires private employers to test interstate drivers; the U.S. Supreme Court upheld drug testing and twelve state laws existed for private workplace testing. Since then more private and public, non-regulated employers have recognized the benefits of testing being enjoyed by their regulated colleagues.
Any discussion of compliance for employer drug & alcohol testing programs must start with an understanding of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). These guidelines were first published by the Substance Abuse and Mental Health Services Administration (SAMHSA), United States U.S. Department of Health and Human Services (HHS), on April 11, 1988. These guidelines establish scientific and technical guidelines for Federal drug testing programs, as well as standards for certification of laboratories engaged in urine drug testing for Federal agencies.
The Mandatory Guidelines also establish the National Laboratory Certification Program (NLCP), with comprehensive standards for the testing of specimens, quality assurance and quality control, chain of custody, personnel, and confidentiality in the reporting of results. Quality assurance is addressed for the entire testing process from specimen collection through reporting of the results to the employer. Specifically, the Mandatory Guidelines requires the Department to: inspect each certified laboratory at least twice a year to document its overall performance; conduct quarterly proficiency challenges for all certified laboratories; and support an external blind control specimen program, with quality control specimens submitted by employers as though they were actual donor specimens.
Confusion often exists because the Mandatory Guidelines apply to Federal Workplace Drug Testing programs which means agencies employees of the Federal Government. This does not include Department of Transportation (DOT) regulated employers, DOT-regulated employees or private employers. It must be noted that the Mandatory Guidelines have set the foundation and the model for a comprehensive legally defensible drug testing program for all employers who conduct drug testing. DOT’s drug & alcohol testing program, State law programs and private employers use these Mandatory Guidelines for the structure and model of the programs to be administered. The DOT program mirrors the Mandatory Guidelines program with a few exceptions.
For a complete review of the Mandatory Guidelines with background information and information on revisions go to: http://edocket.access.gpo.gov/2008/pdf/E8-26726.pdf
A part of SAMHSA, the Division of Workplace Programs (DWP) is mandated by Executive Order and Public Law to provide oversight for:
- The Federal Drug-Free Workplace Program, which aims to eliminate illicit drug use in the Federal workforce, and for
- The National Laboratory Certification Program, which certifies laboratories to conduct forensic drug testing for the Federal agencies and for some federally regulated industries.
DWP provides comprehensive information at https://www.samhsa.gov/workplace and a complete Drug-Free Workplace Kit at: https://www.samhsa.gov/workplace/toolkit. A complete review of these websites is necessary for one to be an expert on Drug Free Workplace programs.
The Federal Government does not require most private companies or individuals to have a drug-free workplace policy of any kind. The exceptions to this are Federal contractors and grantees, as well as “safety-sensitive industries” (DOT regulated employers).
Requirements for Federal Contractors/Grantees
The most important piece of legislation regulating Federal contractors/grantees is the Drug-Free Workplace Act of 1988. This Act requires any organization that receives a Federal contract worth $100,000 or more, to establish a drug-free workplace policy. It also requires all organizations receiving a Federal grant of any size to maintain such a policy.
At a minimum, the organization must:
- Prepare and distribute a formal drug-free workplace policy statement. This statement should clearly prohibit the manufacture, use and distribution of controlled substances in the workplace and spell out the specific consequences of violating this policy.
- Establish a drug-free awareness program. This program should inform employees of the dangers of workplace substance abuse; review the requirements of the organization’s drug-free workplace policy; and offer information about any counseling, rehabilitation, or employee assistance programs that may be available.
- Ensure that all employees working on the Federal contract understand their personal reporting obligations. Under the terms of the Act, an employee must notify the employer within 5 calendar days if he or she is convicted of a criminal drug violation.
- Notify the Federal contracting agency of any covered violation. Under the terms of the Act, the employer has 10 days to report that a covered employee has been convicted of a criminal drug violation.
- Take direct action against an employee convicted of a workplace drug violation. This action may involve imposing a penalty of some kind or requiring the offender to participate in an appropriate rehabilitation or counseling program.
- Maintain an ongoing good faith effort to meet all the requirements of the Act throughout the life of the contract. Covered organizations must demonstrate their intentions and actions toward maintaining a drug-free workplace. Their failure to comply with terms of the Drug-Free Workplace Act may result in a variety of penalties, including suspension or termination of their grants/contracts and being prohibited from applying for future Government funding.
Health Insurance Portability and Accountability Act of 1996 (HIPAA) and Drug Testing
HIPAA protects the confidentiality of “medical records” of a “patient”. None of those terms apply in drug testing. First, there is no patient. Many state drug test laws state so. There is only a donor. Second, there is no record of a “medical” examination. A drug test is not conducted to “diagnose” or “treat” a “patient”. It is a forensic safety exam to determine if an “employee” or “prospective employee” meets the “employer’s” work qualifications. In fact it’s not even a “fitness for duty” exam.
Americans with Disabilities Act states as follows: (1) In general.–For purposes of this title, a test to determine the illegal use of drugs shall not be considered a medical examination.”
DOT has also published its position on this subject stating that HIPAA does not require employers and service agents in the DOT drug and alcohol testing program to obtain written employee authorization to disclose drug and alcohol testing information required by 49 CFR Part 40 and other DOT agency drug and alcohol testing rules. Review this at: https://www.transportation.gov/odapc/hipaa-statement
Americans with Disabilities Act (ADA) and Drug Testing
A test for the illegal use of drugs is not considered a medical examination under the ADA; therefore, employers may conduct such testing of applicants or employees and make employment decisions based on the results. The ADA does not encourage, prohibit, or authorize drug tests. At the same time, the ADA provides limited protection from discrimination for recovering drug addicts and for alcoholics. An employer may discharge or deny employment to current illegal users of drugs, on the basis of such drug use, without fear of being held liable for disability discrimination. Current illegal users of drugs are not “individuals with disabilities” under the ADA. If the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record.
State Laws – Private Employers
Since there is no comprehensive federal drug testing law effecting non-regulated private employers, this leaves the field open to state regulation, and many states over the past 20 years have enacted provisions imposing drug testing restrictions of various kinds. Some limit testing to “reasonable suspicion” or “probable cause” situations. Some explicitly authorize random testing under certain circumstances. Some impose restrictions on public sector employers but not on private companies. Many prescribe specific methods for handling of specimens and the use of test results.
As a general rule, testing is presumed to be lawful unless there is a specific restriction in state or federal law. Employers are encouraged to involve unions when creating drug-free workplace policies. The National Labor Relations Act requires that the terms and conditions regarding any workplace drug testing program be included in collective bargaining agreements. Unions are generally not against drug testing, they work hard to protect the privacy and rights of their members while understanding the importance of employee safety.
Today, more than 550 state laws that affect workplace drug testing exist.
Legal Defensibility
Mainly employers need to have a strongly written substance abuse/testing policy in place. Employers that have taken the time to construct a written policy with proper testing procedures tend to be successful with deterring potential legal issues as well as resolving them if they arise.
Many argue a vague and broad Drug-Free Workplace policy works best since it provides more flexibility; in reality, a policy with well defined procedures are more effective because they set clear expectations for the employees as well as for the organization.
Legal review is very important; a substance abuse policy should always be reviewed and approved by the employer’s legal counsel.
Many times management does not know or follow their own policies. Know and follow your policy – at face value, this may seem too obvious to even mention; however, you would be surprised at how often key personnel may be unaware of their own policy in handling drug testing issues – remember, a policy is only as effective as its use in the real world!
As concerns about drug use in the workplace continue to grow, there has been an expansion in the use of drug testing in the workplace to uncover these users. It is essential that creators of drug free workplace programs keep up with regulations, Federal and State laws and best practices that are outlined by the Mandatory Guidelines for Federal Workplace Drug Testing Programs.
