Labor and the Law By Mark A. Lies II and Kerry M. Mohan Post-accident and Reasonable Suspicion Drug Testing Editor’s note – Mark A. Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw, LLP. He specializes in occupational safety and health and related employment law and civil litigation. Kerry M. Mohan is an associate with Seyfarth Shaw focusing on occupational safety and health, traditional labor matters, and related employment law and civil litigation. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information. As discussed in this column, “Weed and Weapons: Workplace Challenges,” in the December 2013 issue of Render, recent state legislative enactments have expanded the scope of marijuana use for medicinal and recreational purposes. As a result, we can expect the use of marijuana will greatly increase across the United States. These legislative developments have also led to increased uncertainty over whether and when an employer can test an employee for suspected marijuana use. Further, despite the fact that marijuana remains illegal under federal law, employers are subject to the whims of each individual state’s marijuana laws. This article addresses an employer’s ability to conduct two forms of drug testing: (1) post-accident testing; and (2) reasonable suspicion testing. These two forms of testing are being addressed because while employers are generally permitted to conduct pre-employment drug screening for illegal drugs, an employer’s uncertainty generally arises when a current employee has been involved in an accident or exhibits behavior that indicates impairment. Prior to Testing It is advisable that employers implement some form of drug testing policy for pre-employment, post-accident, and reasonable suspicion drug and alcohol testing. However, if an employer wishes to conduct drug and alcohol testing, the employer should first develop and distribute copies of its drug testing policy to all employees in advance, allowing them time to adjust their behavior, including use of marijuana, prior to an effective date to avoid a positive test. If the workplace is subject to a labor agreement, the employer will most likely have to bargain with the union over terms and conditions of the policy. To withstand potential challenges, the testing policy should: • identify the types of testing (i.e., pre-employment, for cause, and post-accident); • identify that the testing is limited to the presence of specific drugs; • use a scientifically valid testing method that involves private specimen collection and chain of custody procedures to ensure proper identification, labeling, recordkeeping, handling and testing of specimens; • notify employees of the consequences that follow a positive drug test; • reinforce the employer’s commitment to maintaining the testing’s confidentiality; and • consider providing sources for help for drug abuse or alcohol misuse problems. State Specific Statutory Restrictions As briefly touched upon earlier, many states (and municipalities) have drug testing restrictions specific for that jurisdiction. Thus, employers must analyze the laws of their local states and municipalities to determine whether they impose written policy and notice requirements, regulate the specimen collection and testing process, impose rehabilitation requirements, restrict employers’ disciplinary actions against employees who test positive, and mandate appeal procedures. Certainly, no employer would want an employee to cause an accident because he/she is under the influence, but employers may be prohibited from taking corrective or disciplinary action because its policy did not comply with local requirements. Post-accident Testing Post-accident testing occurs, as you can imagine, after an accident has happened in the workplace. Post-accident testing is often encouraged by an employer’s workers’ compensation carrier, which either specifically mandates the testing or offers reduced premiums for conducting such testing. The employer may also be able to successfully defend against an Occupational Safety and Health Administration citation issued as a result of the accident based on the employee’s impairment that was unknown to the employer. Though most states freely permit employers to conduct post-accident drug tests, a few states impose limitations on when post-accident testing can occur. For instance, some jurisdictions such as the states of Connecticut, Maine, Rhode Island, and Vermont, and the cities of Boulder, CO, and San Francisco, CA, permit post-accident testing only if the employer has reasonable suspicion to believe that the employee was impaired at the time of the accident. Further, some states, such as California, Iowa, and Montana, require that the accident reach certain threshold levels for the extent of personal injury or property damage before an employee can be tested. Thus, employers must check applicable state laws to confirm such requirements. Reasonable Suspicion Testing Under most state laws, an employer is required to provide an employee a safe place to work. In addition, the Occupational Safety and Health Act requires that employers provide their employees safe and healthy places of employment, which means the employer must identify and address potential hazards. As such, employers must ensure that employees operating equipment, driving vehicles, or 30 June 2014 Render www.rendermagazine.com
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