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The impact of drug abuse on our national workforce is astounding.  Every day, in every city throughout Hampton Roads and the nation, substance abuse costs employers billions.

FACT:  Only about 23% of our Nation’s drug-abusers are sitting around in the abandoned buildings and back alleys of our cities ‘shooting up’ heroin, ‘snorting’ coke, ‘taking a hit’ of grass, or ‘popping’ some meth…’

FACT:  The other 77% of all drug-abusers are EMPLOYED!  (How many are employed by your company?)

Almost everyone has heard of Buzzed Driving, but have you heard about buzzed working? Additional facts, Drug Users:

  • Are 5 times more likely to file workers’ compensation claims than non-drug users.
  • Are involved in 200% to 300% more industrial accidents.
  • Sustain 400% more compensable injuries.

The majority of employers are committed to providing their employees a safe, drug-free work environment.  The weapon of choice is a Drug-Free Workplace program that includes:  written policies, education, employee assistance programs, stiff consequences, and yes, drug testing.  Leadership at your facility must be a fundamental component by enforcing strict and defined policies to guide and to hold all that fail accountable.  Leadership must be engaged to support the clear mission because without it, the program will have no substance.  Believe me, all employees will know.

However, it is imperative employers know and understand the dos and don’ts of drug testing, especially with the new OSHA rule which states you cannot have a blanket policy for post-accident drug testing. That means you cannot test everyone post-accident.  If you do…you will be fined!  In translating the rule it does not prohibit post-accident testing, but it does require that there be a reasonable possibility that drug or alcohol use by the employee was a contributing factor. This does not mean that the employee must appear to be impaired or under the influence after the accident. Instead, it requires that the nature of the accident is such that drug or alcohol use could have been a plausible factor.  OSHA explains with examples: it “would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.”  However, an employee who is injured when he inadvertently drives his forklift into another piece of stationary equipment can be drug tested.  This would not be in violation because the employee’s conduct was directly tied to the injury, and drug use can impact conduct.

Do you know your State laws governing drug testing?

The FAQ page regarding the new rule on the federal OSHA website, https://www.osha.gov/recordkeeping/finalrule/finalrule_faq.html states, “If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.”  While Virginia does not have a law governing workplace drug testing, other States do and testing required under federal or “other” state regulations, such as Department of Transportation (DOT) post-accident testing, is not impacted by the new rule.

Do have a random testing program; it will deter drug use in the workplace. Another alternative, particularly where drug use is suspected, would be to increase the frequency and scope of random drug testing.  Industry experts agree that random testing is the single-most effective deterrent to workplace drug-abuse.

Do require your supervisors to be properly trained by a Substance Abuse Professional to identify drug and alcohol use. Training would alarm supervisors to identify whether reasonable suspicion exists based upon physical, behavioral, speech and performance indicators of probable alcohol or controlled substance use.

To alleviate time and money, do post in all employment ads that you are a Drug Free Workplace Employer.   It’s a well-known fact that drug users are going to apply for a position at companies who do not have or enforce a drug-free workplace environment. Once again, the word does get around!

Be consistent with your drug testing program.  Don’t pick and choose who you are going test. Follow ALL terms of your company’s written testing policy strictly, fairly, and equally with ALL employees-Do not engage in favoritism, or make exceptions.

As with any change in regulation, we recommend employers consult counsel to determine the proper steps for ensuring compliance with a drug-free workplace program in your state.  You can save valuable time and money by making this a priority sooner than later!

About the Author
Stella McClain is Director of Operation and Third Party Administration for Taylor Made Diagnostics (TMD), a leader in providing occupational medical services and workers’ compensation care for all types of industries. For over 18 years TMD has been both provider and resource specializing in DOT and OSHA regulations as well as clinical testing, wellness programs, physical ability assessments and other critical services. She can be reached at 757-494-1688 or via email: smcclain@tmd.bz.

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