Employment Background Check Blog
drug-testing-policy

According to the 2011 HireRight Employment Screening Benchmarking Report, 65 percent of respondents conduct pre-employment drug testing. While these employers are taking helpful steps towards creating a safer and more productive workplace, many may have made some common missteps in the development and management of their drug testing program.

An inadequate drug testing program could fail to detect individuals who abuse illegal drugs or other illegal substances. Such individuals can pose an increased risk of causing a workplace accident, which could result in costly litigation and reputation damage. And for organizations with state or federal contracts, employing an individual that abuses substances could pose compliance risks.

To help minimize these risks, employers should evaluate four components of their drug testing program.

1. Random Drug Testing
While random drug testing can be an effective tool at detecting drug abuse in the workplace, there are several risks that employers may face if their program is not developed and implemented properly.

For example, an ineffective random drug testing program could allow individuals to avoid detection, even when selected, due to the amount of notice given to the individual. To help mitigate this risk, employers should consider the amount of notice provided to complete the random drug test. If an employee is given advanced notice of the random drug test, then they may be able to take measures to evade detection. By limiting the time between the notice and testing, employers can help reduce the likelihood of employees being able to avoid detection.

Another risk that employers should consider is how individuals are selected in a random drug testing program. If an employee feels that they are being singled out too frequently for drug testing, they may make a claim of discrimination. Therefore, employers must develop a truly random selection process to help mitigate the risk of discrimination claims.

2. Legal Compliance
Drug testing laws and regulations vary by state, industry, federal contract status, and more, making the management of a drug testing program complex. It is critical that employers understand the myriad of laws and regulations that impact their drug testing program, or they could face compliance risks.

For example, employers should understand the drug screening regulations in the states in which they operate. Additionally, organizations that operate under a federal contract may be subject to even stricter requirements, including the need to ensure a drug-free workplace in accordance with the Drug Free Work Place Act of 1988.

Employers that are regulated by certain authorities such as the Federal Aviation Administration, Department of Health and Human Services or the Department of Transportation must understand the drug and alcohol testing requirements to which they must adhere, or they could face severe fines.

Drug test employee

Source: 2011 HireRight Employment Screening Benchmarking Report

3. Screening is Not Comprehensive
While 65 percent of Benchmarking Report respondents conduct drug testing, only 39 percent of those have implemented a random drug testing program. This could expose a substantial gap where drug use after the date of hire may go undetected.

Another risk identified by the Benchmarking Report is the uneven implementation of drug testing across the contingent workforce. According to the Benchmarking Report, only 22 percent of respondents conduct drug testing on contingent workers, and they do not randomly test these workers. For employers with a large contingent workforce, this oversight could create substantial risks.

4. Failure to Address Medical Marijuana Laws
Currently, 17 states plus the District of Columbia allow some form of medical marijuana use and several more states have pending legislation. However, the federal Controlled Substances Act still classifies marijuana as an illegal schedule one drug. This conflict between state and federal laws puts employers in a tough position. Employers should consider outlining a specific policy to address medical marijuana in their drug testing policy.

Some employers may elect a zero-tolerance drug-free workplace policy, excluding even card-carrying medical marijuana users. Employers that do not have federal or industry regulations, and are operating in states that allow medical marijuana usage, may choose to create a tailored policy that allows medical marijuana usage for low risk jobs, but bans the substance for high-risk positions.

Does your organization have a drug screening program in place? How does your drug-testing policy measure up against these four high-risk areas?

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The HireRight Blog is provided for informational purposes only. It is not intended to be comprehensive, and is not a substitute for and should not be construed as legal advice. HireRight does not warrant any statements in the HireRight Blog. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization's compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.

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