Question

We are considering adopting a drug-testing policy because we strongly suspect some of our employees are smoking marijuana on their lunch break.  We don’t otherwise conduct drug testing, but we cannot have employees under the influence at work. What are some of the options? Any suggestions on how to identify a testing facility? Can we fire somebody that tests positive, or do we have to send them to a rehab program?

 Answer

Employers often come to the idea of drug testing reluctantly and only after an incident in which they know, or suspect drugs are a factor.  The legalization of medical and recreational marijuana might lead an employer to think the options are limited, however, the laws for both types of use explicitly state that an employer may enact policies prohibiting its use in the workplace.  This may include a drug-testing program.

Although Massachusetts does not have a drug-testing statute, the state does recognize several types of testing that an employer may implement. Limits on drug and alcohol testing are found in the state’s privacy law, which states that: “A person shall have a right against unreasonable, substantial or serious interference with his privacy.” A testing policy and its implementation will be measured by whether it interferes with an employee’s privacy.

Prior to adopting a drug- and alcohol-testing policy, you should identify a reliable testing facility for prompt, accurate results.

There are several options to identify a lab.  We recommend you begin by contacting:

1. Your existing health-care provider or workers-compensation carrier.
2. Your Employee Assistance Program (EAP).
3. A fellow HR professional who has implemented a testing program.
4. A nearby hospital or medical facility.

Once you have identified a testing facility, consider visiting it to learn about how it handles the process and how it will inform you of the results. You can then determine what the scope of your drug and alcohol policy should be.  An employer should notify prospective and current employees of its testing policy.

Massachusetts law recognizes four types of employee drug testing:

Pre-employment, post offer – Under Massachusetts Commission Against Discrimination (MCAD) guidelines and the Americans with Disabilities Act (ADA), employers requiring pre-employment tests should only do so after a bona fide offer of employment has been made. The offer letter should indicate that the offer is contingent on satisfactory test results.

Post-accident – Your policy may specify that testing is required after any incident causing personal injury or property damage, and may also apply to “near-misses,” in which injury or damage does not occur but might have. Any test administered post-incident should be done as quickly as possible after the incident to enhance its value. Depending on the drug involved, time can dilute its impact and render it useless in taking any disciplinary action.

Reasonable suspicion – An employer must rely upon its supervisors/managers to observe employee behavior and then contemporaneously document it to make a strong case for the need to test. Ideally, two supervisors should observe and document the behavior. The employer will have to arrange transportation for the employee to the testing site, such as a rideshare, taxi, or a ride from a manager.

Random testing – Unless required by federal law, random drug testing generally violates an employee’s rights under the state privacy statute, except if the job is safety sensitive. Safety sensitive generally means the job duties require driving a vehicle or operating dangerous machinery or similar activities.

What to do with a positive result?

If a test result comes back positive, an employer has several options.

• Post-offer – Do not offer the candidate employment pending the outcome of the test. Wait for the results and, assuming you explained the procedure to the applicant, refuse to hire the person. With the hiring challenges employers face today, many may give promising applicants a second chance to test if the results are positive, but this is not required.
• Post-accident – Notify your workers-compensation insurer of the results. You may take appropriate disciplinary action as spelled out in your company handbook up to and including termination.
• Reasonable suspicion – You may take appropriate disciplinary action as spelled out in your company handbook up to and including termination.
• Random testing – You may take appropriate disciplinary action up to and including termination as spelled out in your company handbook.

You may wish to develop and implement a reasonable suspicion policy to address your immediate concerns. With the legalization of marijuana in many states, reasonable suspicion training is a burgeoning field, and there is a lot to learn about how to assess impairment in employees.

AIM HR Solutions will conduct a virtual Hot Topic training session on this subject on February 16.

If you have questions about individual situations, contact the AIM Employer Hotline at 800-470-6277.