Written drug-free workplace policies are pretty common in Texas and were required by workers’ compensation law before 2005. The question is whether you need to enforce this kind of policy through a drug-testing program. Except in certain situations, the answer is no. For small and mid-sized businesses, it’s a matter of weighing potential safety and productivity gains against cost and risks. While you’ve got your eye on the bottom line, keep in mind that a new state law requiring drug testing of some unemployment applicants will likely be implemented later this spring. Since Texas employers will bear the cost of screening, unemployment insurance premiums may increase. Premiums may fall if the law reduces claims.
Kinds of Drug Testing Programs
According to the Texas Department of Insurance, forty-two percent of employers with fifteen or more employees had drug-testing programs for managers and managerial job applicants, and forty-six percent had drug-testing programs for non-managerial employees and job applicants. The most common was a pre-employment drug screen administered as a condition of a job offer. During employment, employers may choose to perform annual, random, post-accident or “for cause” testing if an employee appears to be under the influence of alcohol or drugs. Any testing should be done only according to a written policy, with notice and consent of an employee. The Texas Workers Commission offers a sample policy and forms that can be adapted for individual needs. Caution suggests that these samples be used as the basis of a conversation with your business attorney.
Data suggests that construction workers, sales personnel, bar and restaurant workers, laborers and machine operators have a higher average rate of illicit drug use. Drug screening makes sense in high risk situations, such as heavy machinery operation. Reducing the frequency and severity of accidents may keep liability insurance costs down. In addition, some federal laws require testing employees in certain occupations. The 1991 Transportation Employee Testing Act requires drug testing of commercial drivers and other transportation employees in “safety-sensitive” positions. Certain federal contracts require it as well. The advantage to be gained by screening office workers may depend on these special situations.
Employees don’t like them. Start-ups may try to create a sense of ownership among employees to retain valuable talent. A drug testing program can send the wrong message.
It’s not free. One lab quotes prices between $48 and $100 for basic testing, which screens for amphetamines, cannabinoids, cocaine, opiates and phencyclidine. Think through your plan for employees who fail a drug screen. Is the consequence automatic termination, or do you want to take progressive steps, perhaps involving an employee assistance plan (EAP)? The latter could be a big managerial commitment. Whatever your choice, the plan must be consistently implemented.
Although state law does not limit drug screening by private employers in Texas, testing can still get you in trouble. It is important to weigh the risk of four different types of claims that may arise.
- Racial, gender and other forms of discrimination. An employer must not single out certain groups by race, age, gender or national origin for drug testing. Be alert to the risk of unintended impacts. For example, if you require only employees who work on the loading dock to be tested because of the risk of injury, but all employees who work in that capacity are of certain race or ethnicity, you could have a problem.
- Disability discrimination. The Americans with Disabilities Act (ADA) protects applicants or employees who take medication related to a disability. If the medication causes a positive result and an applicant is declined for employment or employee terminated, your company could be liable.
- Invasion of privacy. The way in which a test is conducted, for instance requiring an employee to provide a urine sample in front of others, could be a privacy violation.
- Defamation. Employers must guard the confidentiality of test results. If an employer knowingly or carelessly publicizes a false positive result, an employee may have a valid claim for defamation.
The Unemployment Wrinkle
A drug-screening program for some Texans seeking unemployment benefits, which was set to roll out on February 1, will now be delayed at least a month pending the development of federal guidelines about who this will affect. Commentators generally expect it to cover transportation and health workers, among others, but the law cannot be implemented until federal guidance is forthcoming.