Chapter 8
Legal Issues

Summary

Ignoring the drug problem in the corporate setting can bring legal problems. Conversely, reasonable and well-intended drug prevention programs may also be challenged in arbitration or court. However, experience reveals a relatively large legal exposure by waiting to address the issue (reactive) versus potentially small penalties in trying to mitigate the problem of drugs and alcohol in the workplace (proactive). Ultimately an employer must decide the potential legal costs from instituting a prevention program and the occasional legal challenge from an affected employee versus potentially much larger losses from not instituting a program.

Details

Legal action related to maintaining a drug-free workplace has so far been concentrated in the following six areas:
• Right to privacy;
• Freedom from unreasonable searches;
• Due process;
• Negligence (including negligent hiring, supervision, libel and slander);
• Contract law;
• Discrimination (including racial, sexual, and disabilities).

Cases brought under the first three categories usually involve public employment, although there have been exceptions. Private companies need not be as concerned about those issues if they already exercise good personnel practices. However, the last three--negligence, contracts, and discrimination--clearly apply equally to all employers.

While an employer cannot be guaranteed protection from legal challenge, some things can be done to minimize successful legal challenges:

• Inform employees that drug use on or off the job is a concern. Write your policy to prohibit employees being at work with “any detectable trace amount of drugs or alcohol in their system,” not “under the influence” or “impaired.” Drug tests detect “presence,” not “impairment.”

• Intra-company communications concerning current employees’ performance, conduct or problems should be treated with appropriate confidentiality. Only management personnel with a “need to know” the particular situation should be involved. Additionally, managers must be consistent and thorough in documenting employee performance, investigations, and workplace observations.

• Minimize negligent hiring by requiring all job applicants to pass a drug test prior to being hired.

• Minimize negligent retention by routinely testing employees and being prepared to intervene when a worker is identified as having, or shows signs indicative of, substance abuse problems.

• Minimize negligent testing by adhering to the testing standards established by the U.S. Department of Health and Human Services.

• Conduct personal searches only on a limited basis, and obtain clear documentation of employee consent prior to conducting a search.

• Ensure that workers are not, or do not perceive that they are, being detained against their will in any workplace investigations of suspected drug or alcohol use or possession.

• Minimize breach of contract and wrongful discharge claims by following established policies and revising policies that lack sufficient flexibility to deal effectively with various confrontational situations.

• Establish your drug- and alcohol-free workplace policy in writing, and ensure that all employees receive and acknowledge (in writing) receiving a copy of it.