Drug-Free Workplace Program – Steps to Minimize Legal Problems

Employers who want to establish a drug-free workplace program often find themselves faced with many different federal, State, and local laws. Employers can take several simple and practical steps to help avoid legal problems. The following ten steps are offered by the Division of Workplace Programs (DWP), in the Center for Substance Abuse Prevention, Substance Abuse and Mental Health Services Administration (SAMHSA), U.S. Department of Health and Human Services.

  1. Consult a lawyer whenever you introduce a new drug-free workplace policy or make alternations to an existing policy. The American Bar Association and most State Bar Associations offer free legal referral services that can help you locate a qualified employment lawyer in your area.
  2. Make sure that your drug-free workplace policy clearly stipulates what the penalties for policy violations will be. If your policy includes a drug testing program, spell out exactly who will be tested, when they will be tested, and what will happen to employees who test positive.
  3. Make sure that every one of your employees receives and signs a written copy of your drug-free workplace policy. Verbal agreements and unsigned agreements have little legal standing.
  4. Make sure that you, and all your supervisors, receive proper training in how to detect and respond to workplace drug and alcohol abuse.
  5. Maintain detailed and objective records documenting the performance problems of all your employees. Such records often provide a basis for referring workers to employee assistance programs.
  6. Never take disciplinary action against a worker or accuse a worker of a policy violation simply because that employee is acting impaired. Instead, try to clarify the reasons for the employee’s impairment. If drug testing is a part of your workplace policy, obtain a confirmatory test result before taking any action.
  7. Never accuse or confront an employee in front of his or her coworkers. Instead, try to stage all discussions someplace private, with another manager present to serve as a witness.
  8. Never single out an individual employee or particular group of employees, for special treatment—whether it is rehabilitation or punishment. Any inconsistencies in the enforcement of your policy may lead to charges of discrimination.
  9. Try to get to know your employees, as much as possible. This may help you more quickly identify workers who are in trouble or developing substance abuse problems.
  10. Most important, try to involve workers at all levels of your organization in developing and implementing your drug-free workplace policy. This will reduce misunderstandings about the reasons for having a drug-free workplace program and help ensure that your policies and procedures are fair to everyone.

The best way for an employer to avoid legal problems is to hire an employment lawyer to help develop the workplace policy. This will help ensure that the new policy is consistent with all the required State, federal, and local laws, rules, and regulations. Employers should follow these basic steps and strive to create programs that are fair, consistent, and supported by all.

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