High times

July 1, 2003 By    

Concerned about drug and alcohol abuse among your employees? You should be.

A 1999 study conducted by the Substance Abuse and Mental Health Services Administration found that 70 percent of illicit drug users age 18-49 are employed full time. Because large employers (500 employees and above) test more than smaller companies, the lowest rate of illicit drug use is in large companies, encouraging drug users to work for smaller employers. Specifically, the study found:

  • 44 percent of drug users are employed in companies with 1-24 employees
  • 43 percent are employed in companies with 25-499 employees, and
  • 13 percent are employed in companies with 500 or more employees.
  • A 1998 National Institute on Drug Abuse report states that drug-abusing employees are:
  • 2.2 times more likely to request early dismissal or time off
  • 2.5 times more likely to have an absence of eight days or more
  • 3 times more likely to be late for work
  • 3.6 times more likely to be involved in workplace accidents, and
  • 5 times more likely to file a workers’ compensation claim.

A 2000 Cornell University study found that employers that began testing for drugs experienced a 51 percent drop in injury rates within the first two years.

“It is definitely important for employers to engage in drug testing,” says Bree Raum, membership services coordinator for the National Propane Gas Association.

“Employers of all sizes should seriously consider the idea of maintaining a drug-free workplace,” states Barry Nadell, president, InfoLink Screening Services in Chatsworth, Calif. InfoLink provides background screening and physicals, including substance abuse screening.

“The cost of having an employee who is a drug abuser is in the thousands of dollars, including absenteeism, theft and accidents. In many ways, it affects smaller employers more than larger employers, because the smaller employers can’t afford to absorb these costs.”

In addition, employers who do substance abuse testing find that they also reduce turnover.

An additional benefit is improved morale. Employees and customers know your place of business is a safe place to work, which translates into extra business. “Some of our clients even use the fact that they drug test as a marketing tool,” he states.


But don’t you expose yourself to potential legal problems if you drug test?

“Fifteen years ago, companies were asking whether they should drug test or not,” says William Current, president, WFC & Associates in Coral Springs, Fla., a consultant on drug-free workplaces.

“They were concerned about legal issues and about the accuracy of the testing. Today, we’ve gone beyond that. Almost everyone agrees that drug testing is important. The question is how should the testing be done. New technologies available for drug testing make it easier, more accessible, more convenient, and less expensive than ever before. Results are also available much more rapidly.”

In assessing the pros and cons of drug testing from a legal perspective, two of the most important areas to address are when and why testing is done.

Testing is generally broken down into two main areas: Pre-employment and post-employment.

Experts say employers should, at a minimum, engage in pre-employment testing because it contains few problems. The most important thing is to use a reputable and certified testing entity.

“We follow all U.S. Department of Transportation requirements for new hires, including pre-employment drug and alcohol testing,” explains Robert B. Nicholson III, president and chief executive officer of Eastern Propane in Oak Ridge, N.J., which has about 65 employees. “We use a third-party lab, which tests with urine samples.”

Some employers are concerned that testing would put them in violation of the federal Americans with Disabilities Act for discriminating against a current drug user. The law prohibits employers from asking whether an applicant is a past or recovering addict, because those individuals are protected by ADA.

You can ask if the candidate is a current drug user, however, because current drug use is not a covered ADA disability. Also, the ADA states that a drug test is not a medical exam. As such, you can drug test prior to making an offer of employment.

Still, employers are encouraged to wait until they make a conditional offer of employment before requiring the test. In addition to saving the excess costs of testing all applicants, the ADA prohibits “medical inquiries” prior to making the conditional offer.

A drug test is not considered a medical inquiry. If the test comes back positive as a result of a prescription medication used by the applicant, the applicant would have to divulge the fact that he or she is using a prescribed medicine. As such, the request for this information is a “medical inquiry” and is thus in violation of the ADA.

Dennis L. Kerns, vice president of business development for W.P.C.I. in Scotts Bluff, Neb., says you likewise cannot test for alcohol during the pre-employment phase because it is a legal drug and alcoholism is considered a protected disability under ADA. His firm provides all services necessary for a drug testing program (policy writing, employee/supervisor training, collection, testing, medical review officers and substance abuse professional case management).

Post-employment is broken down further into two subcategories:

“For Cause.” This can include:

  • After an accident has occurred.
  • Reasonable suspicion (observing an employee demonstrating behavior that suggests substance abuse).
  • Post-rehabilitation (return to duty and follow-up testing).
  • Change of employment (to new job position).
  • Random. This can include periodic testing.
  • Post-Employment: While pre-employment drug testing is relatively problem-free in terms of legal issues, you can run into some issues in terms of post-employment testing. Most of these relate to privacy. The critical factor for legal protection is whether the testing is done on a “for cause” or random basis. The courts tend to look far more favorably on “for cause” testing than on random testing. In states where random testing has been upheld, it is usually only in cases where safety-sensitive positions are involved, such as working around natural gas, etc. As such, you might not get court support for random testing if an employee is packing widgets in a warehouse.

In sum, limit yourself to:

  • pre-employment testing,
  • “for cause” testing, and
  • random testing only if it involves safety-sensitive positions.

General Recommendations

Here is a “baker’s dozen” of general recommendations to help you steer clear of drug testing-related lawsuits:

1. Plan your program in advance. “We see a lot of knee-jerk reactions when it comes to many small employers and drug testing programs,” notes Kerns. “They don’t want to become involved in drug testing until they have a bad experience, such as one of their employees being arrested for cocaine distribution. When this happens, they want to test everyone immediately.” A good program should be planned in advance and well thought out. If you attempt to introduce a program overnight, you’re just asking for problems, legal and otherwise, he cautions.

2. Be sure to select a drug testing company that knows and complies with the laws related to drug testing in order to avoid lawsuits. “Most companies hire third-party laboratories for drug testing, rather than trying to do it themselves,” states NPGA’s Raum.

As you are negotiating with the company, be sure the contract offers you appropriate protection. For example, if an applicant or employee is adversely affected as a result of a false positive (e.g., terminated or not given employment in the first place), the testing laboratory should have primary legal liability. In most of these lawsuits, the employer is brought in as a co-defendant, because the laboratory is an agent of the employer. However, if the employer has engaged in due diligence in selecting a reputable and certified agency in the first place, the employer should be on solid ground.

To make sure you are afforded this protection, though, check that a testing company’s contract states that the testing company will indemnify you for any defense costs.

3. A relatively small number of states have their own statutes related to drug testing. You need to determine if your state has such a statute before creating a policy and introducing a program. It is important to remember that, if you have facilities in more than one state, different state laws may apply. Check state laws to determine restrictions and rights related to employer drug testing programs. The testing company you select should be able to help you in this area, along with your attorney.

4. A written policy is incredibly important to your legal protection. “A good drug testing program begins with a good drug testing policy,” notes Current. The policy should be in line with all federal and state laws that apply to that employer.

The policy should have four elements:

  • Why you do drug testing. For example, you might open the policy with the sentence: “The purpose of this policy is to protect the safety, health and well being of our employees, customers, visitors, and other members of the public.”
  • How you do drug testing (the type of testing done, under what circumstances it will be done, etc.).
  • What the consequences will be for failing a test (e.g., termination, suspension, one more chance, referral to an EAP, etc.).
  • What treatment, rehabilitation or alternative options are available if a person who fails a test is going to remain with the company and try to overcome the drug problem.

Again, seek the assistance of your testing company in creating your policy, and be sure to have it reviewed by your attorney.

5. Publicize the policy and program, and educate your employees about them at least 30 days prior to implementation, giving employees who are currently engaged in substance abuse the opportunity to either stop using or to resign.

6. During the hiring process, send a strong anti-drug message to all applicants, emphasizing that you operate a drug-free workplace and that you test for drugs during the pre-employment phase, as well as during employment. This will reduce legal exposure by reducing the number of drug-using applicants who even apply for work in the first place.

7. Reinforce the message in employee handbooks and via the company bulletin board.

8. Have a person in the company assigned to manage the program. This person is called a Designated Contact Person.

9. Be sure to utilize a system that maintains strict labeling and chain-of-custody for the collection, transportation, handling and storage of specimens.

10. If you end up with a positive test result, arrange for a confirmation test at a Department of Health and Human Services-certified laboratory. (The testing company should handle this for you.)

11. Have a Medical Review Officer (MRO) available. An MRO is a licensed medical doctor with special training in drug testing who makes sure that chain of custody procedures are followed.

The MRO also contacts employees who test positive to determine if there are any medical or other legitimate reasons for the positive result. Example: If you get a positive test for drugs using a hair specimen (which can identify usage up to a 90-day period), and the person is a recovering addict, the MRO should uncover this information. Another example: If there is a false positive due to usage of a prescription drug, the MRO should be able to uncover this, too. The MRO should give the person who tested positive any and all opportunities to explain legitimate reasons.

Your testing lab should be able to recommend an MRO. In addition, names can also be found through the American Association of Medical Review Officers (www.aamro.com).

12. Ensure strict confidentiality about results, using a “need to know” policy.

13. Enforce the policy consistently. You cannot show favoritism in terms of who is being tested or how you handle positive results. “Lack of consistency can be a problem,” notes Kerns. “For example, you can get into trouble if you test everyone who applies for a job except your brother-in-law.”

“When it comes to drug testing, the courts say that employees have four general rights,” states Kerns. “If you violate one of these, you are creating a legal risk for yourself.”

1. They have the right to know what the conditions of employment are. For example, they have a right to know under what conditions drug testing is conducted.

2. They have the right to know why they are being tested. For example, you can’t tell someone you are sending them for random testing when the real reason is “reasonable suspicion.”

3. They have the right to confidential notification for testing. For example, if you do random testing, you need to notify the employees who have been selected in a confidential manner.

4. They have a right to have their test results remain confidential.

“In fact, when I train companies, I say there are three things I need to cover,” states Kerns. “These are confidentiality, confidentiality and confidentiality.”


“There are very few cases of ‘invasion of privacy’ lawsuits related to drug testing,” states Current. “Drug testing is generally very well accepted among employers and employees these days.” If you:

  • create and manage your program in accordance with all state and federal laws;
  • run your program responsibly using proven, accurate, impartial technology;
  • maintain privacy;
  • be sure your focus is not on “catching drug users,” but on identifying potential problem areas in the workplace; and
  • treat employees with dignity, then you will have very few, if any, problems related to lawsuits, according to Current.

“Employees may not like drug testing, but they will accept it.”


Blood testing tends to be very accurate for current use, but since it is so invasive, it is rarely used.


Advantages: Timing: With hair testing, you can go back from a few days up to three months. As such, hair testing tends to reduce the number of drug-using applicants who apply at your company, because they won’t stay clean for 90 days in order to apply.

Invasiveness: Hair testing is less invasive than blood testing and less embarrassing than urine testing. In fact, hair testing is the least invasive of all drug testing methods. As such, hair testing would be the easiest to pass muster in terms of legal concerns.

Reliability: Hair testing is more effective than urine for testing for hard drugs.

Adulteration Potential: There is no opportunity to adulterate a hair sample.

Retesting: If there is dispute on a test result, it is easy to get another sample to test.

Disadvantages: Timing: Hair testing does not reveal a present impairment, because it takes about a week for drug residue to appear in the hair. In addition, as noted in the main article, it may show a positive on a recovering drug addict, who is covered by the ADA. “Hair testing can pose some problems,” notes William Current, president of WFC & Associates, a consultant on drug-free workplaces. “I think it is easy to justify looking back two or three days into a person’s life, but to go back 90 days, you do run the risk of being in violation of the ADA. For example, if hair testing detects drug use 90 days ago, but an applicant entered a drug treatment program 80 days ago, the applicant could make the argument that he or she is a recovering addict and is thus protected by the ADA.”

Reliability: Hair testing may provide false positives for people who were in the same room with someone smoking marijuana, although some hair testing providers claim to be able to identify external contamination. In addition, a hair test may mistake legal prescription drugs for illegal substances. Finally, hair testing is not as effective as urine in testing for marijuana use.


Advantages: Timing: Urine testing allows for current usage.

Reliability: It is an excellent test for marijuana usage.

Retesting: Urine testing is the most common form of testing. One reason is that it allows you to use split samples, which is a standard protocol by any certified drug testing firm. That is, if there is a positive in the first sample, they can confirm it with the second sample.

Disadvantages: Timing: Urine testing is only useful for 48 hours. After that, different people will test differently. Some will test positive, others negative, even if they used the same amount and type of drug. As such, it could be claimed to be discriminatory. Another timing concern is that, while urine is a good test for marijuana usage, it can take up to six hours for marijuana to show up in urine. An immediate sample after an accident may not show a positive.

Reliability: Urine testing is less effective than hair for testing for hard drugs.

Adulteration Potential: There is significant opportunity for adulteration of a urine sample. In fact, there are scores of Internet sites offering additive products designed to mask drug use. Approximately 4 percent of all urine samples show adulteration. Even drinking large quantities of water can dilute a urine sample.

Retesting: If there is a dispute, you can test the other half of a “split sample,” but you can’t collect another sample, test it, and expect the same results, because of the time lag between samples.

Oral Fluid (Saliva)

This new technology involves placing a swab in the mouth for about 15 minutes until the swab is saturated with saliva.

Advantages: Timing: It takes only minutes for marijuana to show up andonly slightly longer for other drugs.

Invasiveness: The procedure is very convenient, because it can be done anywhere. It is also non-invasive and can be done in front of an observer, unlike urine testing.

Adulteration Potential: To date, there are no known adulterants that work on saliva, so there is no opportunity to adulterate the sample.

Disadvantages: Timing: There is a shorter detection period. Saliva testing covers drug use within a few minutes to only a day and a half.

Reliability: Saliva detects less concentration of a drug than hair or urine testing do, except for drugs smoked or used intranasally. In addition, saliva testing cannot detect PCP use.

Retesting: It is difficult to preserve a specimen for retest.

Testing Program

With so many advantages and disadvantages of each type of testing, which makes the most sense? It may be wise to use different tests for different circumstances. For example:

Use hair testing for pre-employment, rehabilitation recovery, and change of employment, since it can detect usage back as long as 90 days.

Use urine testing for situations that require knowledge of more current usage, such as for random or periodic testing.

Use saliva testing for situations that require immediate knowledge, such as post-accident and reasonable suspicion.

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