Risks, Choices in Drug Testing Employees

Posted on Wednesday, April 10, 2019

A major challenge to employers who do drug testing of applicants and employees is the widespread availability of products people use to defeat the tests.

Urine tests were popular with employers, but now hair sample tests are becoming more widespread. But now products are available that applicants and employees can use to defeat the results of hair tests.

What Employers are Doing

Growth of testing for illegal drug use by employees actually is slowing down from previous years. For years many employers, especially large companies, were testing applicants and employees. In fact, in the 1990s the growth in drug testing was averaging 12.5 percent a year. But these days, growth has declined to about one percent per year.

So what's an employer to do?

The Wipe Test

The newest weapon an employer can use is the "swipe-able" drug test, also called the "drug-wipe" test. The test uses a device (something like a home-pregnancy test) that a person can swipe over telephone receivers, computer keyboards and mouses, calculator keys, doorknobs, armrests, coffeepot handles, light switches and even the water fixtures in a sink. 

The device is set to detect tiny amounts of drugs secreted by the skin. It can't prove an individual person in the workplace is using illegal drugs, but it can detect whether at least one person in the workplace is using illegal drugs. The test can detect the presence of marijuana, opiates, amphetamines and cocaine.

The drug-wipe test is widely used by law-enforcement agencies, including nearly 1,000 state and local agencies, and the FBI.

An employer can also use the drug-wipe to spot test individual employees or spot test the workstations, work areas, or offices of individual employees.

[Note: Before doing any kind of drug testing of employees or use of a device to detect the presence of drugs in your workplace, know what your state law is regarding drug testing of applicants and employees. Some states have strict rules governing when and how an employer can do drug testing of applicants and employees.]

Some Pros and Cons

Before rushing to do drug testing of any kind in your workplace, consider the benefits as well as the risks.

Benefits: Most employers who do drug testing believe it helps them reduce the hiring of drug abusers. By reducing the number of employees who abuse drugs the business is able to reduce accidents and workplace injuries, reduce Workers' Comp costs, improve productivity, and maintain or improve quality of products or services.

Risks: Most important, drug testing of any kind brings with it legal -- and lawsuit-related -- risks. Drug testing opens up the employer to charges from staff members of violation of their privacy rights. In states with laws regulating how and when an employer can do drug testing, the employer who does drug testing runs the risk of violating the law. There is also the risk of a defamation lawsuit: This can happen, for example, if an employer disciplines or terminates an employee who fails a drug test, the reason is publicized, and the employee claims the test was faulty.

Drug testing can be expensive if tests are done on many or all employees. The cost can run from a low of $10 per employee for the drug-wipe test, on up to $35 per employee for the urine test.

What's an Employer to Do?

Before jumping into drug testing of any kind, do at least three things:

1. Do a cost-benefit analysis. Are you hiring many or most of your employees from a pool of applicants more likely than the general population to abuse drugs? Then doing drug testing of final applicants could be cost-effective. Do you suspect that some employees are abusing drugs and that this behavior is negatively affecting their job performance? Perhaps doing a drug-wipe of their work areas might be cost effective.

2. Design a drug testing program that keeps what you do within the law. Don't do anything in the area of drug testing without clearing what you do with an attorney.

3. Train your supervisors in how to detect behavior that could indicate poor performance on the job caused by drug abuse. Train your supervisors to focus their efforts on the poor performance.

4. Check out the information and guidance available to employers from the U.S. government's Substance Abuse and Mental Health Services Administration (SAMHSA). 

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Disclaimer: The information contained in Dulin, Ward & DeWald’s blog is provided for general educational purposes only and should not be construed as financial or legal advice on any subject matter. Before taking any action based on this information, we strongly encourage you to consult competent legal, accounting or other professional advice about your specific situation. Questions on blog posts may be submitted to your DWD representative.

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