Substance abuse has become a societal problem that unfortunately sometimes spills over into the workplace. Most employers have adopted drug and alcohol policies to prohibit substance abuse at work, and many have implemented testing policies to enforce those rules.

The most common situations for the use of drug or alcohol testing are:

• Pre-employment—All applicants can be required to have a drug screen as a condition for employment after receiving a conditional job offer.

• Reasonable Cause—An employee whose actions or behavior cause a suspicion of abuse may be screened.

• Random Screening—Employees can be subject to screening on a random basis regardless of other screens.

• Post-Accident—Workers’ compensation and OSHA rules often require testing of an employee involved in an accident.

The tests can be administered in-house by the employer or at a medical or other testing facility with expertise in substance abuse testing. Procedures must be implemented to detect employee cheating in the testing process. Cheating can consist of diluting a urine sample, using another person’s sample or other forms of subterfuge.

Applicable laws

An employer establishing a drug and alcohol testing policy must take several federal and state laws into account, such as the Americans with Disabilities Act (ADA), the federal Drug-Free Workplace Act, the Department of Transportation (DOT) regulations, and OSHA requirements. For example, the ADA places some restrictions on when testing can be performed. The DOT regulations require strict rules for the testing of all drivers who operate commercial motor vehicles that require a commercial driver’s license. OSHA imposes certain requirements for testing after injuries.

Drug Free Workplace Act

The federal Drug Free Workplace Act imposes requirements that are not generally applicable to other employers, and generally applies to all federal contractors with contracts in excess of $100,000. Covered employers must take certain measures including the following:

• Publish and give a policy statement to employees informing them that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited

• State penalties for violating the policy, and establish a drug-free awareness program

• Impose a penalty or require satisfactory participation in a rehabilitation program by any employee who is convicted of a reportable workplace drug conviction

• Make an ongoing, good-faith effort to maintain a drug-free workplace

These are only some of the Act’s requirements. Similar requirements are imposed by state law on contractors who do business with the state of Virginia.

Hair Follicle Drug Testing

Employers are increasingly using the hair follicle drug test rather than the more frequently used urine and blood tests to test for drug use by employees. Recent federal legislation allows employers of commercial drivers to add hair testing as an option in addition to urine testing. The hair test offers some advantages over other forms of testing:

• Hair tests detect a much longer history of drug use. Hair stores a longer history of drug use than either urine or blood, which are limited to a few days for most drug types. Hair testing is the only drug testing method available that can provide a 90-day drug use history and is better at revealing chronic drug use.

• Hair tests are harder to cheat. There are many devices and chemicals available on the internet to assist people in “beating” the urine test. Because there are no privacy issues with removing a hair sample from a person’s head, the sample can be taken in full view.

There are, however, some disadvantages and pitfalls to hair testing:

• Hair testing cannot determine very recent drug use because hair grows so slowly, so it cannot be used for reasonable suspicion drug tests or post-accident testing.

• If retesting is required or desired, a retest of the original hair specimen might be difficult or impossible.

• Disciplinary action based on a hair test that reveals past, longer-term drug use can potentially violate the ADA if the employee has a drug addiction but is not a current user.

Employers who perform drug testing of employees should consider whether to include hair follicle testing as a method under certain circumstances.

Medical Marijuana

The increasing prevalence of medical marijuana can create some difficult policy decisions for employers. Under the Americans with Disabilities Act (ADA), employers are required to make reasonable accommodations for qualified employees with disabilities. Although recovering drug addicts do have some protections under the ADA, it does not protect illegal drug use. Marijuana remains an illegal drug under federal law, with no exceptions for medicinal use, so its use is not protected under the Act. Federal courts have generally ruled that the ADA does not require a medical marijuana accommodation.

Some state laws, however, do provide protection for the use of medical marijuana by workers. For example, Alaska, Arizona, Delaware and Minnesota have passed laws that prohibit an employer from firing or disciplining registered medical marijuana patients for testing positive for the drug at work. In addition, in 2017, state courts in Massachusetts and Rhode Island ruled that the disability laws of those states give medical marijuana patients the right to a reasonable accommodation. Virginia does not yet have a statute which requires accommodation in the workplace for medical marijuana use. Employers may voluntarily make that accommodation, but it is not required in Virginia by either state or federal law.

Drug and alcohol policies for the workplace serve a valuable purpose of curbing substance abuse at work, and contribute to the overall societal goal of reducing or eliminating substance abuse.