David J. Middlebrooks, Albert L. Vreeland, II, Editors
Lehr Middlebrooks & Vreeland, P.C.

Vol. 18, No. 10
March 2008

SAFETY FIRST

Did your employee inhale?

Jennifer L. Howard

This month's column is dedicated to workplace drug-and alcohol-testing programs. Can these programs make your workplace safer? What legal restrictions apply? Is it worth the cost?

To test or not to test?

It can be as difficult to stay on the straight and narrow path of compliance with substance-testing laws as it is for intoxicated drivers to walk a straight line on a police stop. There's a wide array of legal requirements. Some employers are legally required to test employees (e.g., employers of certain commercial motor vehicle drivers and certain federal employees and contractors).

Public employers, on the other hand, are legally prohibited from conducting certain types of testing except on employees in safety-sensitive positions. Unionized employers may be required to bargain before instituting particular types of testing. Otherwise, nonunionized, private employers in Alabama are permitted to drug test within their discretion and may test for alcohol so long as they comply with the Americans with Disabilities Act rules for medical exams.

Even if you're not required by law to implement a testing program, there may be benefits to doing so. Many argue that the primary benefit is promoting workplace safety. Although some detractors point out that drug tests can't determine whether an employee was impaired at work, advocates maintain that the policies deter many employees from engaging in substance abuse on duty and thereby prevent accidents.

That is the question

In any event, there are unquestionably some concrete benefits to testing, even if a particular employer isn't legally required to do so. In Alabama, you can qualify for a five percent discount on your workers' compensation premiums if you implement a drug-free workplace program containing all the elements required by law, including drug and alcohol testing.

If you can show that an employee's workplace injury was caused by his intoxication, you're not required to pay any workers' comp benefits (other than medical expenses). Further, if an employee is fired for testing positive or if he fails to submit to or cooperate with a drug or alcohol test, he may forfeit any right to unemployment benefits so long as he was previously warned of such a possibility in writing.

Each employer must determine whether the potential benefits of testing outweigh the downsides ― particularly the expense and potential administrative burden. Those factors depend on the types of testing that are conducted and the procedures used for doing so. If you choose, you may contract testing out to third-party administrators.

Drug-and alcohol-testing programs aren't "one size fits all." Testing generally may be conducted in one or more of the following circumstances: (1) preemployment (after a conditional offer of employment has been made), (2) when reasonable suspicion exists to believe that an employee is intoxicated, (3) postaccident, (4) postrehabilitation (i.e., after an employee returns to work following drug or alcohol rehabilitation), and (5) randomly.

Bottom line

You should decide in advance which types of testing you want to use and develop a written policy giving employees advance notice of the circumstances under which they will be subject to testing. Testing policies should also address a host of related issues, including the consequences of testing positive or refusing to test, confidentiality procedures, procedures to ensure accuracy, prescription drug issues, and employee training.

If testing and test results aren't handled correctly, you can be vulnerable to invasion of privacy, discrimination, or defamation claims, so it's advisable to involve counsel in the policy development process. With some forethought, you can develop a program that clears the, um, "smoke" and leads to clarity. Information about Alabama's Drug-Free Workplace Program is available at www.dir.alabama.gov/wc/drugfree.aspx. Information about disqualification from workers' comp benefits is available at www.dir.alabama.gov/wc.

"Safety First" is a monthly column dedicated to workplace safety issues and written by Jennifer L. Howard, an attorney with Lehr Middlebrooks & Vreeland, P.C., in Birmingham. You can reach her at (205) 323-8219 or jhoward@lehrmiddlebrooks.com.

Copyright 2008 M. Lee Smith Publishers LLC

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