Drug test

Use and abuse

Drug-free workplace programs should take into account new safety and legal challenges

August 1, 2011


  • Recent reports have shown that prescription drug abuse has reached the level of a public health crisis.
  • Many states have passed laws making medical marijuana use legal, which could create workplace drug issues.
  • OSHA advises organizations to implement comprehensive workplace drug programs, but to consider an employee’s right to privacy.

Safety professionals tasked with running an effective drug-free workplace program are facing new challenges to keep employees safe while avoiding liability issues.

Although alcohol abuse is the most common controlled substance found to contribute to workers suffering fatal injuries in the workplace, recent reports show prescription drug abuse has become a public health crisis, and more states have laws that make medical marijuana use legal.

Drug-free workplace programs are not required by OSHA, and no agency standards exist for these programs. According to its website on workplace substance abuse, OSHA “supports comprehensive drug-free workforce programs, especially within certain workplace environments, such as those involving safety-sensitive duties like operating machinery.” Drug-testing programs also need to take into consideration an employee’s right to privacy, OSHA cautions.

Alarming trends in drug use

In April, Director of the White House Office of National Drug Control Policy Gil Kerlikowske, Assistant Secretary for Health Howard Koh, Commissioner of Food and Drugs Margaret A. Hamburg, and Administrator for the Drug Enforcement Administration Michele M. Leonhart released an action plan responding to America’s prescription drug abuse crisis.

According to researchers from the Center for Behavioral Health Statistics and Quality at the Substance Abuse and Mental Health Services Administration, the rate of increased prescription drug use has become a public health issue and a concern to employers. Results of the 2009 National Survey on Drug Use and Health showed that of the estimated 19.3 million illicit drug users who were 18 or older at the time of the survey, 12.9 million (66.6 percent) were employed either full or part time.

The population entering the workforce – people 18 to 25 years old – are showing an increased rate of prescription drug use, said Peter Delany, director of the Center for Behavioral Health Statistics and Quality at SAMHSA. Non-medical use of prescription drugs among this age group increased to about 6.3 percent in 2009 from 5.5 percent in 2002, he said. More alarming is that the same age group is increasingly turning up in emergency departments because of drug abuse, he said. Overall, emergency department visits involving misuse or abuse of pharmaceuticals increased 98.4 percent between 2004 and 2009, according to a report from SAMHSA’s Drug Abuse Warning Network.

Drug use by industry

Workers in the construction and mining industries reported the highest rates of substance abuse, while workers in professional services and government had the lowest rates, according to a 2002 National Household Survey on Drug Abuse. Workers in wholesale and retail industries also reported high rates of past-month illicit drug abuse.

Cost to employers and employees

The reality is that prescription drug abuse has negative repercussions on all facets of a person’s life, Delany said. For example, people addicted to prescription drugs will not be attentive at work and, if they are going through mild withdrawal, they could be absent for days because of related health problems. Other possible consequences include injuries resulting from a motor vehicle crash on or off the job, Delany said.

According to the American Council for Drug Education in New York, employees who abuse drugs are 10 times more likely to miss work, 3.6 times more likely to be involved in on-the-job incidents (and 5 times more likely to injure themselves or another worker in the process) and 5 times more likely to file a workers’ compensation claim. They also are said to be 33 percent less productive and responsible for potentially tripling health care costs.

Drug testing trends

Barry Sample is director of science and technology at Quest Diagnostics Inc., a Madison, NJ-based provider of diagnostic testing, information and services. He said the Quest Diagnostics Drug Testing Index released in September 2010 shows that although positive drug tests for cocaine and methamphetamine are on the decline, an increasing number of American workers and job applicants tested positive for prescription opiates. Depending on the particular prescription opiate, post-incident drug-test results show much higher positive rates compared with pre-employment tests, Sample said.

For example, post-incident drug test results for hydrocodone detected opiates can show up to 4 times more often than pre-employment tests. These findings point to the possibility that prescription drugs played a role in an incident, he said.

Drug testing has evolved from employers waiting to receive the results of a pre-employment drug test before fully hiring a new employee. Today, it is not unusual to see a potential employee walk away from a job interview with strands of hair taken for hair follicle drug testing.

Workplaces can conduct both hair follicle and urine testing, receive instant feedback from oral fluid testing, and conduct random drug testing and return-to-duty drug testing. Tests easily can be administered by an employer, hiring manger or human resources professional, Sample said.

Issues arise, however, when drug testing policies do not spell out conditions for testing, which leaves the employer open to worker claims of discrimination or invasion of privacy.

States with medical marijuana laws

The District of Columbia and the following 15 states have passed medical marijuana use laws.

New Jersey
New Mexico
Rhode Island

Emerging legal issues

In June, the American Civil Liberties Union sued Florida Gov. Rick Scott (R) over drug testing of state employees. ACLU filed the lawsuit in Miami federal court, claiming the law – which allows Florida to take urine and hair samples before hiring state workers – constitutes an unreasonable search and seizure.

In addition, some testing methods for certain drugs may have limitations. According to Quest Diagnostics, hair follicle tests have been shown to be less effective than urine tests in detecting prescription drug abuse in post-incident or reasonable-suspicion cases.

Hair follicle tests also may show positive results for marijuana use that occurred weeks prior. Medical marijuana use – in states where it is legal – has increasingly become an issue for employers, who must balance employee rights to use the substance with workplace safety and potential legal issues. In Michigan, a federal judge ruled that Walmart had the right to fire an employee for marijuana use even though the employee had a prescription from his physician and was using marijuana for medical purposes. (At press time, medical marijuana was legal in 15 states.)

The Des Plaines, IL-based American Society of Safety Engineers recently voiced support for pro-employer provisions of laws in states where medical marijuana is legal that allow the employer to take actions to protect workers from other workers who are impaired by marijuana.

Employee use of medical marijuana also may raise issues with the federal Drug-Free Workplace Act, the Family and Medical Leave Act, the Americans with Disabilities Act, and other federal regulations, such as drug testing requirements mandated by the Department of Transportation.

In addition, conflicts exist between federal law and laws in states that have decriminalized medical marijuana. DEA defines marijuana as a Schedule I substance under the Controlled Substances Act. On its website, DEA states, “Schedule I drugs are classified as having a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use of the drug or other substance under medical supervision.”

On July 8, DEA published a letter in the Federal Register that denied a petition to initiate proceedings to re-classify marijuana.

Michael D. Gifford is an attorney specializing in labor and employment law and privacy protection at Howard & Howard Attorneys PLLC, in Peoria, IL. Gifford said employers should know what their state law requires regarding drug-free workplace programs, and should determine whether they are subject to conflicting federal requirements and carefully fashion a policy that complies with all obligations.

Employers also should examine which employees have safety-sensitive responsibilities and will be impacted by the policy. Meanwhile, organizations should carefully train front-line supervisors to recognize drug abuse, he said.

General policies and procedures

When drafting a drug-free workplace program, Sample said safety professionals need to identify job responsibilities that may have a safety-sensitive concern. In addition, employers should avoid applying prescription drug testing policies across all employees. Drug-free workplace programs are not a one-size-fits-all plan, he said.

“As an employer they need to balance the right of the patient to be treated with these drugs with their need to have a safe and productive workplace,” Sample said. The program should be the result of discussions and a partnership involving the employer, employee and the employee’s physician. Policies also should include methods for informing employees about the risks of prescription drugs and the possible effects on performing work duties.

Employers also need to be compliant with state laws and regulations and know whether or not the company participates in any given state drug-free workplace program, Sample said. “All that can impact what the employer is allowed to do and what an employer is required to do,” he said.

Reasonable suspicion and fairness

J. Mac Allen, a principal at Superior Training Solutions Inc. who operates an office out of Nashville, TN, said a number of warning signs may help indicate that an employee is abusing a drug on the job. Before confronting an employee with reasonable suspicion, safety professionals should be trained to know what symptoms are associated with alcohol abuse and certain drugs.

If the employer has grounds for reasonable suspicion, talk to the employee directly in a private place, Allen said, stressing that employers must make sure the employee is treated fairly. Do not be an enabler, he said. “I tell professionals that they really need to ask only one question or make one statement: ‘You don’t seem to be acting like yourself this morning,’ and get them talking about their well-being and is there a particular reason [for their behavior],” said Allen, an 18-year veteran of the substance abuse testing and background information industries.

Allen said employers drafting a drug-free workplace program should cover all bases so they have something they can use in court if needed, but they also should make sure the employee is treated properly.

Delany said one of the most important things for employers is to educate their employees about all potential negative health and social effects of drug use, particularly prescription drug abuse. Among the many factors that have contributed to prescription drug abuse is a lack of communication and education between the physician and patient, he said.

Another factor that has caused prevalent abuse is drug manufacturers now have a broader spectrum of medications that can be used to control acute chronic pain. Patients stop using medications, and leftover pills are stored in the medicine cabinet. Kids, family members and friends can access the medications, Delany said.

Health experts say many people regard prescription drugs differently than illicit drugs such as heroin. Patients fail to see prescription drug use as an addictive drug, and abuse of the drug is not considered as dangerous as illicit drug use, even though the effects of prescription drug abuse can be equal to or worse than the effects of heroin.

Employers should provide employee assistance programs, which offer counseling for employees and their family members about substance abuse problems, according to Delany. When run well, he said, EAPs can be extremely helpful for both employers and employees, but he warned that measures for punishment for violating drug policies should be included. Employees also should be aware of whether their benefits will pay for treatment. Meanwhile, the safety professional needs to become well-versed in understanding different types of addiction, Delany said.

Elements of a comprehensive drug-free workplace program

  • A clearly written policy supported by top management, understood by all employees, consistently enforced, and that outlines expectations for employees and consequences of policy violation
  • Substance abuse prevention program with an employee drug education component and availability for counseling and treatment
  • Training of managers, front-line supervisors, human resources personnel, medical staff and others on how to identify and deal with substance abusers
  • An appropriate drug and alcohol testing component designed to prevent the hiring of workers who use illegal drugs and provide early identification and referral for treatment
  • An employee assistance program

Source: American Council for Drug Education