Tips for Creating a Drug-Free Workplace

One topic that has been coming up more frequently on the HR Helpline is a drug-free workplace and drug testing.  Below we've provided some information and resources to assist you in establishing a program.

Drug-Free Workplace Act of 1988. This Act requires any organization that receives a federal contract worth $100,000 or more, to establish a drug-free workplace policy. It also requires all organizations receiving a Federal grant of any size to maintain such a policy.
At a minimum, the organization must:

• Prepare and distribute a formal drug-free workplace policy statement. This statement should clearly prohibit the manufacture, use, and distribution of controlled substances in the workplace and spell out the specific consequences of violating this policy.
• Establish a drug-free awareness program. This program should inform employees of the dangers of workplace substance abuse; review the requirements of the organization's drug-free workplace policy; and offer information about any counseling, rehabilitation, or employee assistance programs that may be available.
• Ensure that all employees working on the federal contract understand their personal reporting obligations. Under the terms of the Act, an employee must notify the employer within 5 calendar days if he or she is convicted of a criminal drug violation.
• Notify the Federal contracting agency of any covered violation. Under the terms of the Act, the employer has 10 days to report that a covered employee has been convicted of a criminal drug violation.
• Take direct action against an employee convicted of a workplace drug violation. This action may involve imposing a penalty of some kind or requiring the offender to participate in an appropriate rehabilitation or counseling program.
• Maintain an ongoing good faith effort to meet all the requirements of the Act throughout the life of the contract. Covered organizations must demonstrate their intentions and actions toward maintaining a drug-free workplace. Their failure to comply with terms of the Drug-Free Workplace Act may result in a variety of penalties, including suspension or termination of their grants/contracts and being prohibited from applying for future Government funding.

For assistance in creating a policy, the U.S. Department of Labor offers a drug-free workplace policy builder tool on it's website.

Drug Testing Programs.  The majority of employers across the United States are not required to drug test and many state and local governments have statutes that limit or prohibit workplace testing, unless required by state or Federal regulations for certain jobs, such as the transportation industry. Also, drug testing is not required under the Drug-Free Workplace Act of 1988. On the other hand, most private employers have the right to test for a wide variety of substances. It is very important that before designing a drug-testing program you familiarize yourself with the various state and Federal regulations that may apply to your organization, and consult with an attorney.

In deciding whether to institute a drug testing program, ask the following questions:

• Will you test all employees and how frequently? If not, what will be the basis for selection?
• Will the testing be done for applicants only, or for existing employees annually, on a random basis, or done only for cause?
• If you test only for cause, how is cause defined?
• If the test is positive, what disciplinary action will be taken?  What happens if the employee refuses to be tested?

The federal Substance Abuse and Mental Health Services Administration (SAMHSA) has developed a Drug-Free Workplace Kit suitable for companies of all sizes to help in creating and maintaining drug-free workplace policies and programs.  This free information explains to employers how to protect and prepare the workplace, identify substance-related issues, and provide prevention education and assistance.  It addresses the legal aspects of the problem, as well as how to build a team and policies and programs to address illicit substance abuse.  The kit has nine pullout brochures, 13 fact sheets, a bumper sticker, and two posters for display.  An online version can be downloaded here.

Employers who meet the drug-free workplace requirements defined by the New York State Insurance Fund may be eligible for a workers' compensation credit.  For more information, contact your carrier or click here.

Sources: U.S. Department of Labor and SAMHSA