The Background Buzz

How To Implement a Successful Drug Testing Program

by Peter Cholakis

Many organizations do not realize the prevalence of employee drug abuse or they do not believe it is a problem in their companies. But studies have shown that on average, 10% to 12% of the workforce in any given company abuse drugs.

This is especially true of the construction industry, for example, which is a dangerous line of work even under ideal conditions. But the industry also has one of the highest rates of drug use among its workers with approximately 25% of all laborers and supervisors abusing drugs. Studies demonstrate the link between on-the-job accidents and drugs. In fact, more than 50% of job-site accidents are caused by illegal drug use, according to a study by the National Council on Compensation Insurance and Cornell University.

Drug use is not confined to construction, however, and firms that turn a deaf ear to the reality of illicit drug use put themselves at high risk for potentially devastating personal, legal and financial repercussions. While abuse of certain drugs has fallen off in recent years, still others are on the rise. The most recent Quest Diagnostics Drug Testing Index indicated that amphetamine abuse is rising and will continue to increase as meth labs pop up across the Eastern states. In fact, drug test results showed a 68% increase in methamphetamine use from 2002 to 2003.

The effects of on-the-job accidents resulting from drug abuse go beyond injuries and possible loss of life. Consider the high insurance payouts and costs, increased benefit utilization and workers comp claims caused by drug abusers. These can drive insurance premiums to unmanageable levels. Injured employees are away from work, often for extended periods of time. And high accident rates can damage the company’s reputation. All of these factors can severely affect any organization’s ability to stay competitive. With this in mind, instituting an employee drug testing program seems to be a natural solution.

Implementing a drug testing program may seem like a daunting task for an organization, but, in fact, the process is relatively straightforward and generally well accepted if approached with the right resources and support. Since drug testing is a strategic corporate issue that affects the safety of employees, the financial bottom line and the overall competitiveness of an organization, the key is getting a commitment from all levels of the enterprise.

When implementing any drug testing program, an organization must consider the following:

Legal ramifications. There is a general lack of awareness and much misinformation in the United States regarding the legal issues surrounding drug testing. Although there are some restrictions employers must keep in mind, employee drug testing is in fact legal. Corporations and employees alike are protected and supported by federal law, in the form of the 1998 Drug Free Workplace Act, which provides employers and employees with the right to work in a drug-free workplace. The majority of federal and state guidelines and statutes support drug policies and drug testing programs. The federal government firmly supports drug testing programs in the workplace.

Drug testing policies and programs must be created fairly, well documented, professionally administrated and effectively communicated to all parties involved. Per the U.S. Department of Justice, employers must be fully cognizant of the legal liabilities associated with drug testing and brought by lawsuits, primarily originated by (1) un-hired applicants and employees who refuse to take a drug test or who are discharged or disciplined for positive test results or (2) clients, fellow employees and members of the general public who may be injured or affected by a drug-using employee. It is important to note that settlements in the former category are usually in the low thousands of dollars, while those in the latter are often in the millions according to the U.S. Department of Justice.

Overall, courts are holding more companies responsible for mistakes made by poorly trained personnel administering drug tests without well-conceived guidelines. As recent court decisions have demonstrated, there is enormous liability when a company does nothing or does the wrong thing in the face of clear evidence of drug and/or alcohol abuse throughout the workplace. Many states have drug testing statues and/or recommended guidelines that outline what an employer should and should not do. Employers should determine what laws, if any, exist in the states where they conduct business to ensure their testing rules and procedures comply with state regulations.

Ignoring the drug problem in the corporate setting can cause both significant safety and legal problems. While even reasonable and well-intended drug prevention programs may also be challenged in arbitration or court, experience reveals a relatively large legal exposure from waiting to address the issue, versus traditionally smaller penalties incurred by attempting in good faith to mitigate the problem of drugs and alcohol in the workplace.

Testing methods. There are five common modes of employee drug testing: pre-employment, random, post-accident, reasonable suspicion and return-to-duty. While the chief among these, pre-employment testing, has been practiced for more than 20 years, it has only been marginally effective at reducing drugs in the workplace. By definition, it only addresses a small part of the workplace, ignoring the fact that more than 75% of drug abusers are currently employed and more than 10% of workers currently abuse drugs. Since most pre-employment testing is currently urine-based, the possibility of adulteration becomes an issue. To be truly effective, urine sampling must be directly observed, which is clearly not practical in the workplace sector.

Random testing of the full workforce is currently only practiced by a small group of corporate innovators, but it is proven to be the most effective deterrent to illicit drug use in the workplace. Case studies have shown up to nine times fewer “positive rates” as well as significant reductions in workers compensation claims and accidents.

Post-accident testing has become the norm for larger businesses, and most states allow employers to deny workers compensation benefits to employees who test positive for drug abuse.

Reasonable suspicion testing is becoming more widespread, as more and more supervisors are trained in how to recognize symptoms of drug abuse.

Return-to-duty testing is performed after an employee who has tested positive for drugs has completed an employee assistance or substance abuse recovery program. This ensures the employee is drug free and ready to resume work.

Types of testing. There are also different types of drug testing. Traditionally, drug testing has been done using urine samples. Urine-based testing remains the most widely used method of drug testing and is used almost exclusively for Department of Transportation (DOT) employees and other federal workers, as well as for correctional institution application. Urine testing is currently considered the industry standard and is approved by DOT and the Substance Abuse and Mental Health Services Administration (SAMHSA). However, the urine collection process is uncomfortable as it must be closely observed and the testing requires specialized laboratory facilities for analysis. In addition, urine test results can take from 24 to 96 hours to return from the lab, are costly and can be easily adulterated.

Oral-fluid based testing is a small but growing way to test for drugs. Oral-fluid based testing is relatively easy to administer and can be done on-site with immediate results. Oral fluid testing has not been accepted for federal employee testing and can only detect THC for up to 24 hours.

Hair testing is another method for drug testing that is becoming more prevalent. Hair testing can detect past drug use for a longer period of time, but it is also costly and results are not secured for several days.

Sweat testing is the least proven method for drug testing and is not widely adopted. The testing process is relatively non-invasive but results can take several days.

Drug testing using blood is almost exclusively restricted to hospital and/or clinical application. It is the most accurate sample for detecting current usage but is highly invasive, costly and requires expensive laboratory equipment.

All drug tests have similar accuracy ratings. The big difference, however, is in the detection windows. The length of time that the sample holds drug use information is different for each type. For example, it can take several hours for traces of marijuana to appear in urine. Therefore, someone who is tested 30 minutes after ingesting the drug will test negative. You will have similar results for hair testing—which holds drug use information for the longest period of time but requires a certain amount of time to pass before the residuals will be incorporated into the hair follicle. The converse is true for oral fluids when testing for marijuana. Oral fluids can detect recent use but will not recognize marijuana use after 48 hours. In determining what type of sample to use, keep these detection windows in mind. Are you more interested in historical use or recent use?

Laboratory vs. on-site testing. Urine, blood or hair testing must be analyzed in a laboratory. These samples must be obtained by a trained professional that can ensure that proper collection procedures are followed. This requires that individuals that are being tested leave their place of employment taking time away from their jobs.

On-site tests, typically oral-based, can be done at the place of employment. This takes up less time and allows employers to immediately test employees that they suspect are under the influence. This can be a major advantage in safety conscious fields like construction. It also reduces the chances of adulteration as the employees must submit to the drug test as soon as they are informed.

Implementation. When implementing a drug testing policy, there are a few additional topics that you must address. First and foremost, a comprehensive, written drug screening program should be created and adhered to as the implementation guide for the established drug screening policy that clearly outlines all relevant responsibilities, processes, methodologies and procedures.

It is also important that administrators of on-site tests be properly trained. Although it is not legally required, you want to ensure that the administrator is properly handling the drug testing product to maximize its effectiveness. As all tests that indicate drug use must be confirmed by a laboratory, there are no legal ramifications if the administrator is not using the product properly, but you run the risk of missing potential drug users and/or returning false positives.

When selecting a vendor for drug and/or alcohol tests, be sure that that the vendor provides factory direct training and has a dedicated technical support resource. Most vendors will provide training to ensure that the administrators are familiar with the collection procedure. Even the easiest-to-use products must be handled properly to ensure an accurate reading.

The role of the medical review officer. A medical review officer (MRO) must certify all drug testing results in order for them to be legally binding. According to the U.S. Department of Health and Human Services, a MRO is defined as, “A licensed physician responsible for receiving laboratory results generated by an agency’s drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual’s positive test result together with his or her medical history and any other relevant biomedical information.”

The MRO meets with the employee suspected of drug use to determine if there are any pre-existing medical conditions to consider or if he or she is currently taking any prescription drugs that could alter the test’s outcome.

In order for an employee to be terminated from his or her job, an MRO must agree with the results of the drug test. Failure to have agreement from an MRO can open an employer up to adverse legal actions.

Communication is the Key
While any new corporate initiative is likely to be met with some degree of skepticism, a drug testing program can be an especially sensitive issue. As such, forthright, direct and open communication with all constituencies is required from the start. A written drug testing policy is an important piece of collateral that should be circulated to and signed by all employees. Sample policies are available from industry experts and can typically be tailored to the needs of any corporation. In general, the policy should clearly state that illegal drug use will not be tolerated and may result in employer action. Diligent communication should also include properly notifying and educating employees of drug-free workplace programs prior to any implementations.

A drug-free workplace orientation program for all employees is a proven method of communicating an organization’s policies as well as presenting the economic, health and legal liabilities associated with illicit drug (and alcohol) use. Communications should be ongoing, and the benefits of the company’s program regularly posted.

Ensuring a safe, secure work environment should be the overriding goal for any corporation implementing a drug testing program. Technologies and methods are available today that make putting a drug testing program in place a simple and painless process.

Peter Cholakis is vice president of Avitar, Inc., a Canton, Massachusetts-based firm that develops, manufactures and markets oral fluid diagnostic products for disease and clinical testing, with a special focus on employee drug testing.

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