By Sharon Bottcher

This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.

There is a big difference between simply having a testing program and having a testing program that is effective at serving the needs of both the employer and employee.  An effective program should have clearly identified the goals and objectives.  Furthermore, a program should be tailored to the company’s needs and comply with the applicable state laws and regulations specific in each of the states where the company has business operations.

PROGRAM GOALS

There are several reasons companies choose to incorporate drug testing as part of the standard operating procedures for applicants and current employees. Primarily, the most popular objective is to create a safe and healthy work environment and to discourage drug and alcohol abuse in the workplace thus ensuring employees are fit to perform their assigned duties. Additionally, another goal is to educate employees on the issues involved with substance abuse, including the negative consequences that can affect a person’s health, home life and career.

WRITTEN POLICY

Once the program has been planned it necessitates organizing the details in a written summary.  These details of the program will be used to create the written drug and alcohol testing policy.   Policies help to formulate a course of action that determines the way specific decisions are made.  There are several key issues that must be addressed in the drug-free workplace policy including the company’s culture, specific testing needs, how testing will be conducted, the consequences for policy violations, testing requirements, and applicable laws.  Law consideration consists of drug testing statutes, industry specific requirements, workers’ compensation regulations, unemployment compensation regulations, case law decisions, and medical and recreational marijuana laws as well as federal laws. In some case, all of these legal considerations will come into play with the development of a program and policy.

Also, for a policy to be effective, individuals responsible with carrying out the policy, such as a Designated Employer Representative (DER), must understand it thoroughly.  To be successful to serve in the role of managing the testing program, the DER should be properly trained and receive ongoing training to keep updated with any program changes so they can work in accordance with the company rules.

ANNOUNCEMENT AND IMPLEMENTATION

Once the policy has been developed, the next step is to rollout the program and share the program requirements with employees.  There are several options to introduce a new program or updated policy to employees.

In some circumstances, rolling out a successful program may include a simple announcement.  The announcement could be verbal, emailed or in a written letter format.  The announcement should include the reason for the program, the effective date, how to obtain a copy of the policy, and the contact person if any questions regarding the policy should arise.   In some cases, it may be better to introduce the program in person or by formal training sessions. In other situations, an announcement and training would be beneficial.  The best way may depend on the company size, type of program, the states affected by the program, and the company’s resources.

Generally, most employers have a fair amount of flexibility on when and how to communicate the program to employees, unless they are subject to certain federal regulations and/or certain state laws, in which case there are specific timeframes and procedures that must be followed. Below are a few examples of states that regulate program notifications.

1. Several states require compliance with federal drug testing regulations even if a company is not covered by such regulations. U.S. Dept. of Transportation agencies require employers covered under their regulations to have policies in place that fully explain their drug and alcohol testing program.
   Employers must also make them available to employees covered under a DOT program.
2. Maine has a mandatory law that requires an employer to receive policy approval by the Department of Labor prior to implementation and must contain certain details. It must also provide notice to employees 30 days prior to implementation of a new program and 60 days for any changes to an existing program.
3. Oklahoma has a mandatory requirement to detail very specific content in the policy and requires a 10-day notice to employees prior to a new program or changes to an existing program.
4. Minnesota has a mandatory requirement to provide written notice to all affected employees, post it in a conspicuous location on company premises, and make it available for inspection during regular business hours.
5. Alabama has a voluntary law that requires a 60-day advance notice for new policies. Notice of the policy or changes to an existing policy must be posted in an appropriate and conspicuous location. In addition, applicants must also be advised.
6. Florida has a voluntary law that requires a 60-day notice for testing. The employer shall give all employees and job applicants for employment a written policy statement that must contain very specific details.  The notice must take place prior to testing.

Because there are numerous other states with similar notification and policy requirements, careful review of each applicable law is necessary to determine which, if any, specific notification and/or policy requirements apply.

Even though some states do not require an employer to provide notification or have specific policy requirements, to do so is a best practice and helps to reduce exposure to legal liability by keeping all employees and applicants informed. At a minimum, employers that are implementing a program for the first time or have incorporated changes to the policy should provide employees with at least 30 days written notice that a drug testing program will be implemented or modified.

ACKNOWLEDGEMENT

Additionally, some state laws require and is best practice to require employees to be given a copy of the drug policy and be required to sign an acknowledgment stating that they received, read, and understand the policy.  The acknowledgement form can be provided manually or electronically and should come with a deadline for completion.

The Current Consulting Group (CCG) can help assist with the policy development, notification requirements as well as formalized trainings. Contact CCG at 215-240-8204 for more information.