Considerations for Implementing a Reasonable Suspicion Drug Testing Program
Employers know that pre-employment drug screening can help mitigate risks and provide a safe workplace environment. However, what are the actions that an employer can take when they suspect employee impairment in the workplace due to alcohol or drug use?
Employers know that pre-employment drug screening can help mitigate risks and provide a safe workplace environment. However, what are the actions that an employer can take when they suspect employee impairment in the workplace due to alcohol or drug use?
Reasonable suspicion drug testing occurs following observations of behavior and/or actions in the workplace that lead the observer to believe that the employee may be impaired due to drug or alcohol use. This type of testing promotes the goals of a drug-free workplace program, which can be effective in preventing accidents, absenteeism, healthcare, and other incurred costs, as well as protecting and promoting the well-being of employees.
In this blog, I will take you through the key components of a reasonable suspicion drug testing program, triggers for reasonable suspicion testing, some state regulations you need to be aware of, and best practices for your program.
Why Implement Reasonable Suspicion Drug Testing?
Drug and alcohol use in the workplace is a serious problem with far-reaching consequences for both employees and businesses. The U.S. Department of Labor reports that drug and alcohol abuse causes 65% of accidents in the workplace. Furthermore, 38-50% of all workers’ compensation claims are related to the use of alcohol or drugs in the workplace. The NCADD (The National Council on Alcoholism and Drug Dependence) found that in 11% of workplace fatalities, the employee had been under the influence of alcohol, and federal surveys show that 24% of workers report drinking during the workday at least once in the past year.
Additionally, drug abuse has a significant impact on businesses, costing the U.S. economy an estimated $81 billion in productivity loss alone. While this impact varies depending on industry, company size, and location, it is clear that illicit drug use can be a major financial burden for businesses.
In addition to productivity losses, illicit drug use can also lead to increased medical costs, employee turnover, and damage to brand reputation. When all these factors are considered, the overall impact of illicit drug use on businesses can be as high as $14,000 per year per employee who tests positive for drugs.
In addition to reducing potential financial implications, a major reason to advocate for a drug-free workplace is to help safeguard employees. This can assist in preventing accidents and injuries, as well as preserving employees' health and well-being.
Key Components of a Reasonable Suspicion Program
Employers using reasonable suspicion testing should have a clear and documented reasonable suspicion drug testing program in place. This program should include the following key components:
A written company policy that outlines the program and its procedures. This policy should be distributed to all employees and should be prominently displayed in the workplace.
A definition of the trigger events and criteria that will be used to justify reasonable suspicion testing. This definition should be clear and objective, and it should be based on observable signs and symptoms of drug or alcohol impairment.
Training for management on how to recognize the signs and symptoms of drug and alcohol abuse and dependence. This training should help managers to make informed decisions about whether to require an employee to undergo reasonable suspicion testing.
Nondiscriminatory identification of employees for reasonable suspicion testing. Employers must ensure that they are not targeting certain employees for testing based on their race, ethnicity, gender, or other protected characteristics.
Defined disciplinary consequences should an employee refuse to provide a specimen.
Triggers for Reasonable Suspicion Testing
Reasonable suspicion drug testing is conducted on an employee following observations of the employee's behavior or actions that suggest that the employee may be impaired in the workplace due to drug and/or alcohol use. The observations, also known as triggers, must be specific, contemporaneous, and objective. This means that the observations must be based on what the supervisor saw or heard, and they must be made at the time of the incident.
The observations that can justify reasonable suspicion drug testing fall into the following categories:
Appearance: Red or glassy eyes, inappropriately dilated or constricted pupils, stained fingertips, runny or irritated nose, profuse sweating, nystagmus (jerky eye movement), drooling, or poor/drastic changes in hygiene.
Behavior: Impaired coordination, unsteady gait, disorientation, mood swings, apathy, drowsiness, euphoria, restlessness, or talkativeness.
Speech and body odor: Slow speech, incoherent speech, fast speech, slurring of words, change of speech pattern, smelling of alcohol, or smelling of marijuana.
It is important to note that these are just examples of observations that can justify reasonable suspicion drug testing. The specific observations that will justify reasonable suspicion drug testing will vary depending on the circumstances, and these observations alone do not necessarily mean the employee is under the influence of drugs or alcohol. For example, these observations could have other explanations, such as illness.
States with Reasonable Suspicion Laws
U.S. employers should be aware that there are—at the time of writing—15 jurisdictions that have legislation governing reasonable suspicion drug testing. These laws vary from state to state, and employers should be familiar with the specific requirements in the jurisdictions where they operate. We recommend that you speak with your legal counsel before implementing any drug testing policy to confirm that you are acting in accordance with state and local legislation.
Specific definitions and parameters
The three states with the most stringent laws are Alabama, Maine and Montana. These states have adopted requirements that are similar to the federal regulations governing drug testing for transportation workers. For example, some of these states require that observations of drug or alcohol impairment be validated by a second supervisor and that drug testing be conducted within a certain time window after the observation is made.
Voluntary Drug-Free Workplace Programs
Arizona, Arkansas, Florida, Kentucky, Mississippi, Tennessee and Ohio have voluntary drug-free workplace programs that offer state rebates for workers' compensation premiums. Employers in these states must have a reasonable suspicion drug testing program in place to qualify for the rebate. The specific requirements of these programs vary from state to state.
Special Definitions
Eight jurisdictions have special definitions of “reasonable suspicion drug testing”. These definitions can vary depending on the location, and employers should research the specific requirements in the jurisdictions where they operate. These are: San Francis, CA, Boulder, CA, Connecticut, Iowa, Minnesota, New York, Rhode Island and Vermont.
Reasonable Suspicion Drug Testing Best Practices
Adding reasonable suspicion drug testing to your drug-free workplace program can be a complex process. Here are some best practices to consider when developing your program:
Look for changes in employee behavior, attitude, appearance, and hygiene. These can be early signs of drug or alcohol abuse or on-the-job impairment.
Document any observations of drug or alcohol paraphernalia on or around an employee, including their vehicle. This can include pipes, tourniquets, liquor bottles, etc.
Consider having a medical evaluation performed on all visibly impaired employees. An employee who shows signs of drug or alcohol impairment could be suffering from a medical condition that is unrelated to drug use.
Have a written policy in place that outlines the procedures for reasonable suspicion drug testing. This policy should be distributed to all employees and should be prominently displayed in the workplace.
Train your supervisors and management team on the trigger events and observations that warrant reasonable suspicion drug testing. This training should help them to make informed decisions about whether or not to require an employee to undergo drug testing.
Adding reasonable suspicion drug testing to your drug-free workplace program can be an effective way to mitigate risks and keep your employees safe. Following the best practices outlined in this blog may help you begin to develop a program that is fair, consistent, and transparent.
For more information on reasonable suspicion drug testing, including details on specimen testing and real-world examples, please watch our webinar: Practical Aspects of a Reasonable Suspicion Program
Release Date: November 7, 2023
Dr. Todd Simo
Dr. Todd Simo currently serves as the Chief Medical Officer and Managing Director of Transportation at HireRight. He came to HireRight with a decade of experience in the medical consulting arena. Prior to HireRight, he was the Medical Director of an occupational health clinic in Virginia and owned a consulting firm providing medical director service to multiple companies located throughout the country. In that capacity, he established multiple customer specific health and drug screening services. In his current position, he oversees HireRight's medical department.