Drugs in your tribal workplace: what steps to take to minimize your risks
The likelihood of drugs in your workplace is increasing. Across the U.S., employee drug use is growing, according to the latest findings by the Quest Diagnostics Testing Index, one of the primary drug screening providers in the nation, released last August. Recent state regulatory developments regarding medical and recreational marijuana have created a complex web of compliance concerns for employers. Coupled with the ongoing opioid addiction crisis which plagues the country, employers are left grappling with drug testing policymaking and substance abuse management in the workplace.
The rate of workforce drug positivity hit a sixteen-year high in 2019, said Quest. Positivity rates in the combined U.S. workforce increased in urine drug tests, climbing to the highest level since 2003 (4.5 percent) and more than 28 percent higher than the 30-year low of 3.5 percent recorded between 2010 and 2012.
In addition to overall increases in workforce drug positives, specific regions of the United States, particularly the Midwest, experienced dramatic increases in positivity for cocaine and methamphetamine as well as marijuana, according to an article published by Quest.
As of Spring 2021, 17 states, the District of Columbia, and all U.S. territories have legalized the recreational use of marijuana, while 36 states, D.C., and the territories now permit the use and sale of medical cannabis products. At the federal level, President Biden has pledged to legalize cannabis as part of his social justice initiatives. This game-changer will create new obligations for employers under the ADA.
A sweeping opioid abuse epidemic further compounds substance abuse prevention challenges, requiring that employers maintain a delicate balance among business objectives, employee rights and ADA requirements. Overdoses in the workplace can also have OSHA implications, as can exposing workers to the perils of impaired coworkers or contractors. OSHA will also likely be changing its policy (again) on when employers can legally drug test injured workers post-accident.
“There is no question that before COVID-19, rates of workplace drug positivity were trending in the wrong direction, based on our Quest Diagnostics data. The enormous strain caused by COVID-19 may prove to be an accelerant on this disturbing trend,” said Dr. Barry Sample, senior director of science and technology, Quest Diagnostics. “Organizations will need to consider the impact of COVID-19 not only on workplace safety but also as a health concern for their employees for some time to come.”
Workers who abuse alcohol and drugs, on or off the job, and regardless of whether they’re illegal drugs, prescription or over-the-counter drugs — can pose a significant risk to their employers and coworkers. Absenteeism, high turnover, diminished job performance, lowered productivity, tardiness and increased medical and workers’ compensation bills typically occur with drugs in the workplace. Exposing employers to legal liability, these employees who abuse drugs and alcohol can also make a workplace more volatile and more dangerous.
Workers who abuse alcohol and drugs, on or off the job, and regardless of whether they’re illegal drugs, prescription or over-the-counter drugs — can pose a significant risk to their employers and coworkers. Absenteeism, high turnover, diminished job performance, lowered productivity, tardiness and increased medical and workers’ compensation bills typically occur with drugs in your tribal workplace. Exposing employers to legal liability, these employees who abuse drugs and alcohol can also make a workplace more volatile and more dangerous.
Now add to this issue the fact that several states have legalized either medicinal or recreational marijuana use as of the November elections, plus the continued dispensing of opioids for injured employees heading back to work, and your tribal business’s risk for workplace injury, whether for an employee, vendor or customer, just increased. What can you do?
While there’s an ongoing debate about the efficacy of employer drug-testing, there’s no doubt that drug-free workplace programs are cost-effective methods to help employers save money and keep their employees safe. Your program to minimize drugs in your tribal workplace should consist of these five components, according to the National Safety Council:
1. A clear, written policy against drugs in your tribal workplace
While you may not have an in-depth employee handbook, it’s important to have a written policy that all employees read and sign. Your policy should include an explanation of testing procedures (when and how the test will be given, and what substances — at what levels — the test will detect), plus a discussion of the disciplinary steps the company will take and under what circumstances). Consult with your attorney to ensure compliance with federal and various state laws regarding the use of legal drugs and over-the-counter medications used on the job: your company may have to accommodate the employee’s use. This in turn may be handled by specific job descriptions where, for instance, an employee drives or operates machinery. Your policy should spell out the threshold for reasonable cause to test employees for drug use, and those parameters must be consistent with legal and policy requirements.
2. Employee education of your policy against drugs in your tribal workplace
Safety is key. Employee communication needs to focus on the shared goal – ensuring that work can be done safely and effectively at all times. Clearly explaining your policy along with such helps as EAP should be scheduled on a regular basis in employee and team meetings.
3. Supervisor training
Managers need to be current on their workplace policy for prescription drug use, understand potential signs of impairment and the scope of drug testing. The nonmedical use of prescription drugs is not acceptable and may be treated the same as illegal drug abuse would be. Understanding these nuances is critical for managers.
For instance, managers shouldn’t test every employee nor invoke random testing. Instead, “a drug test is most likely to withstand legal scrutiny if you have a particular reason to suspect an employee of illegal drug use or the employee’s job carries a high risk of injury,” said legal advice hub NOLO.
Further, managers need to know that the Americans with Disabilities Act (ADA) may protect an employee’s use of over-the counter or prescription drugs to treat a disability. Such use should not be prohibited by a drug testing policy. If an employee notifies a manager that his or her medication may impair job performance, managers should be coached on how to engage and offer reasonable accommodations, including modifying job responsibilities.
However, prescription drug abuse is considered illegal drug use. Employees may be tested for such abuse based on a reasonable suspicion. Manager training should include examples of typical behavioral- and performance-related signs of impairment, and specifically what the threshold is for reasonable cause to drug test. This information should be communicated regularly by managers during team meetings.
4. Drug testing aids your battle against drugs in your tribal workplace
For every drug test administered, document why it was necessary and how the test was performed. Keep the test results confidential, and be consistent in how your company deals with workers who test positive.
Although employers cannot force workers to take a drug test, they can fire an employee who refuses to take a drug test, as long as the employer had a solid basis for asking the employee to submit to the drug test in the first place.
5. An Employee Assistance Program to deter drugs in your tribal workplace
Employer-sponsored treatment as part of a benefits program is a cost-effective solution. SHRM (Society for Human Resource Management) provides suggested policy guidelines that include stating that your company will assist and support employees who voluntarily seek help before becoming subject to discipline or termination. Such employees will be allowed to use accrued paid time off, placed on leaves of absence, referred to treatment providers and otherwise accommodated as required by law. They may be required to document that they are successfully following prescribed treatment, taking and passing follow-up tests if they hold jobs that are safety-sensitive or require driving, or if they have violated this policy previously.
While undergoing and finishing treatment, employees should report to work fit for duty and free of any adverse effects of illegal drugs or alcohol. This policy does not prohibit employees from the lawful use and possession of prescribed medications. Employees must, however, consult with their doctors about the medications’ effect on their ability to work safely and productively, and they must promptly disclose any work restrictions to their supervisor. Employees need not disclose to the company their underlying medical conditions unless directed to do so. To learn more, Google “SHRM’s suggested drug policy.”
It’s a sticky issue, and will most likely continue to be murky. We urge you to set policy now, train all supervisors and managers, and then train and reinforce your policies. Adhering to your policies without exceptions may be your best defense should any issues arise.
Please note: We at Arrowhead are not qualified to provide legal advice; we strongly recommend you seek the advice of your tribal council and attorney to ensure that appropriate federal and state laws are taken into consideration as you create your employee policy on drugs in your tribal workplace.