Chapter 3
Steps in Policy Development

Preparing for the Policy

In preparation for developing a drug and alcohol prevention policy, the following steps should be considered:

• Commit your organization’s senior managers to a drug-free workplace;

• Identify organizational indicators of substance-abuse-related liabilities such as increases in accidents, theft and property losses, security breaches, benefits utilization, absenteeism, training costs, and Workers’ Compensation claims;

• Obtain national, state and/or local statistics gathered by substance abuse agencies (health or law enforcement), medical or health societies, hospitals or treatment facilities, chapters of the National Council on Alcoholism and Drug Dependency, and business and industry or trade organizations;

• Gather workers’ views, formally or informally, as to whether drug or alcohol use is present and whether it is undermining health, safety, security, or other aspects of work activity; ask for input from employees on the best way to implement a drug-and-alcohol-free workplace program;

• Call together representatives of key units within your organization, such as occupational safety and health, security, employee benefits, personnel, and the EAP to get a company-wide sense of the problem; employee representatives should be part of the process;

• Compare hard data with subjective views to get some idea of the productivity toll exacted by drugs and alcohol;

• Decide whether drug and/or alcohol testing will be a part of your program and when, how, and for whom testing will be administered (e.g., job applicants, all employees, employees in jobs involving safety or security, employees who have had accidents), whether testing will be periodic and announced or random and unannounced;

• Determine what disciplinary measures (e.g., dismissal, suspension, demotion, transfer) you will take against employees who violate the policy;

• Determine what the appeals process will be for employees who wish to appeal positive tests and resulting discipline;

• Recognize that alcohol abuse and illegal use or misuse of prescription drugs are major drug abuse problems, just like illegal drug use, and need to be addressed comprehensively also;

• Estimate the costs of employee assistance and rehabilitation programs as they relate to health insurance, Workers’ Compensation and unemployment;

• Ask your health insurance agent about coverage for alcohol and other drug-related problems for your employees and their family members.

Drafting the Policy

Once you have a clear idea of what you expect from your drug and alcohol prevention policy, you should:

• Draft a preliminary policy on drug and alcohol abuse in the workplace;

• Coordinate your policy and program internally with those individuals responsible for labor relations, personnel, medical care, security, public affairs, and occupational safety and health;

• Ensure legal counsel clears the policy’s substance and language to ascertain that it:

• Is consistent with other corporate polices;
• Complies with relevant federal, state and local laws regarding drug and alcohol testing; and
• Reduces your vulnerability to legal challenges;

• Collectively bargain with your union or employee association representatives, if any, regarding your intent to implement a drug-and-alcohol-abuse prevention policy and program (especially regarding testing, which is mandatorily subject to collective bargaining), and enlist their cooperation and support;

• Issue a formal, written policy statement on drug and alcohol abuse that explains:

• Your commitment to a drug-free workplace;
• Under what circumstances, if any, drug and/or alcohol testing will be conducted;
• The consequences of refusing to be tested;
• The consequences of violating the policy; and
• The fact that law enforcement officials will be contacted when appropriate regarding the use, sale, purchase, or possession of illegal drugs on the job.

Enforcing the Policy

Proper enforcement of the policy is essential. Otherwise, the policy is just a piece of paper. Some basic rules of policy enforcement include:

• Enforce the company policy consistently. Be prepared to make the same response when a “positive” drug or alcohol test is confirmed for a long-term, highly placed employee whose performance is marginal as you would for a short-term or “non-essential” employee.

• Maintain thorough, secure and confidential records for drug and alcohol test results and for drug-and/or-alcohol-related accidents or incidents. The best defense to a legal challenge to disciplinary action based on drug or alcohol abuse, and an important safeguard for protecting innocent employees, is documentation.

• Show full support for supervisors. This will:

• Demonstrate the commitment to and seriousness of the company’s policy;
• Assure supervisors and employees that they should coop- erate in efforts to identify those employees who violate the law and the company’s policy; and
• Deter further violations.
• Discipline supervisors who, in administering and enforcing the company’s substance abuse prevention program, abuse their power, harass employees, lie, do not take action when viola- tions are committed, or otherwise act in bad faith. Employees must be shown that the company’s prevention program is fair and consistent in order to assure meaningful cooperation and maintain positive morale.
• Some drug detection techniques should be used only when necessary to address severe drug selling or abuse problems.
  Use discretion in employing:
  
  • locker, office, or vehicle searches;
  • hidden cameras;
  • undercover operations;
  • dogs trained to detect drugs; or
  • other vigorous surveillance and detection techniques.

Law enforcement officers can advise you on the best way to proceed.

Issues to Consider in a Policy

Testing

Many employers include provisions for various forms of testing in their substance abuse prevention policies. Many employers consider testing an excellent tool for both detecting and deterring drug and alcohol abuse. Alcohol tests may analyze a subject’s breath, blood or saliva. When testing for drugs other than alcohol, urine samples are typically utilized, although some employers test hair samples.

Regardless of which drugs you test for, follow these basic guidelines:

• Testing is only one aspect of a comprehensive strategy to prevent substance abuse in the workplace.

• Contract with a reliable, professional testing service that will assure quality control and chain-of-custody for test samples. Ensure that the personnel providing the services are trained and that the manufacturer’s instructions for testing apparatus are followed to the letter. It is also advisable to use a service that has professionals qualified and available to serve as expert witnesses.

• Implement testing in as fair, accurate, and legally defensible a manner as is reasonable considering your company’s situation. Extreme caution must be used to assure that the collection, handling, and testing procedures are reliable and accurate and to prevent misidentification. Because relevant laws are constantly changing, consult with legal counsel before implementation.

• Provide job applicants a copy of your policy that defines the company’s requirements for drug and/or alcohol testing of employees. Request that applicants acknowledge in writing at the time of hire their recognition that participation in the company’s testing program is a condition of continued employment. Place the signed acknowledgement form in their permanent personnel file.

• Split urine specimens into two samples so that a second test can be performed using the same specimen when the first test is positive for drugs.

• When an employee’s sample tests positive, before taking disciplinary action, have a second test performed using the gas chromatography/mass spectrometry (GC/MS) method. While other methods are acceptable and standard for the initial screening process, GC/MS is the only legally defensible testing method and should always be used for confirming positive results.

• Require that the testing laboratory retain positive test samples as evidence, preserving refrigerated samples for at least one year as a legal precaution. If a legal claim arises on a particular sample, ensure that the laboratory retains it until the dispute is completely resolved.

• Make every effort to observe reasonable employee expectations of privacy and confidentiality.

• Provide timely and complete notification to employees who test and retest positive for drugs, informing them of the test results and what they mean.

Rehabilitation

All workplace substance abuse prevention policies should include consequences for violations of the policy. Some employers terminate violators, others suspend them, and still others offer rehabilitation for employees whose violations do not include serious misconduct such as violent behavior, trafficking or possession of large amounts of drugs. Most employers allow for voluntary self-referral to rehabilitation, not related to an employee being detected as being in violation of the policy. Some states require employers to offer violators rehabilitation rather than termination. It is important to learn what requirements, if any, exist in your state.

It is also important for an employer to recognize that the identification of a drug problem is only the first step in a long process that optimistically should end in rehabilitation of the employee. In achieving this goal, employers should consider these issues:

• Provide the opportunity, when feasible and appropriate, for employees who test “positive” to participate in company-sponsored employee assistance and rehabilitation programs. These programs should be state or nationally certified and should include medical monitoring, treatment, re-testing, and counseling.

• Provide referrals to local counseling and treatment centers for employees with substance abuse problems as an alternative to, or as a supplement for, company EAPs.

• Insist on a high-level of accountability for employees in company-sponsored or company-referred drug-rehabilitation programs. Make such programs available only to those employees who acknowledge the existence of a substance abuse problem and demonstrate a desire to deal with their problem. Stress that strict adherence to the requirements of the program and random retesting are the only alternatives to their dismissal.

• Address the problems of the families of employees who are substance abusers, emphasizing group, family, personal, and outpatient counseling.

• Require individuals to test negative before returning to work after rehabilitation, and require them to participate in a post-rehabilitation testing program wherein they are frequently randomly tested to monitor their abstinence.

• Insist on regular participation in an after-care program to prevent relapse.

Disciplinary Action

Violations of substance abuse prevention policies frequently lead to disciplinary action against the violators. Some guidelines for initiating disciplinary action are:

• Document as fully as possible the relationship between declining job performance and substance abuse before taking disciplinary action against employees. This is especially important for employees in jobs involving either:

• minimal risk to the safety of the public or co-workers;
• little need for public trust; or
• no access to substantial amounts of cash or valuables.

• Dismiss chronic abusers who:

• are unable or unwilling to rehabilitate;
• are unable to perform their duties because of impairment or incapacity due to illegal drug use; or
• have been apprehended selling drugs illegally on the job.

• Establish a mechanism for a quick and fair review of employee complaints and resolution of grievances filed by employees who are discharged, suspended, demoted, or transferred for violation of the company’s substance abuse policy.

• Monitor legislative and legal developments and revise your company’s substance abuse prevention program accordingly regarding relevant:

• federal, state and local legislation;
• special requirements imposed on federal contractors by the U.S. Congress;
• special requirements imposed on private contractors by their clients;
• National Labor Relations Board decisions;
• arbitration rulings; and
• court decisions regarding the employment-at- will doctrine and its relationship to employees discharged for on-the-job substance abuse.

It is important to evaluate, periodically and at the senior management level, how well your program’s and policies’ objectives are being achieved. Make changes where necessary and appropriate.