Why Reasonable Suspicion Testing is the Way to Go
The legalization of marijuana use, both medically and recreationally, is spreading rapidly. By the end of June 2021, thirty-six states will allow for medical use. Another 17 states (plus the District of Columbia) allow the recreational use of marijuana. This rapidly changing landscape, coupled with marijuana’s illegal status under federal law, creates numerous challenges for employers. There are key distinctions between the types of use authorized by states which create additional employer considerations. Even states that have eased marijuana restrictions have not done so uniformly.
So, how can an employer maintain a safe workplace while also remaining compliant? First, it is essential to remember that employers have a responsibility to provide a safe workplace. Of course, ensuring employees are not under the influence of drugs or alcohol at work is key. Regardless of its legal status, it remains a critical objective. However, marijuana’s complicated legal status should dictate some changes to standard employment practices.
One such practice is pre-employment drug screening. While quite common, you may wish to revisit this practice for legal and practical reasons. Some jurisdictions have banned pre-employment drug tests for marijuana use. Or some have prohibited an employer from taking an adverse action based on a positive pre-employment marijuana test. Even in jurisdictions where cannabis is legal, testing capabilities limit an employer’s options.
This is because marijuana can stay in a user’s system for an extended period. Accordingly, a positive test result does not indicate a user is currently under the influence or impaired. Instead, it simply signifies that the person used marijuana at some point in the recent past. Many states protect an employee’s right to use lawful products when not on work time or premises. This means that taking action against an employee who legally used marijuana after hours or on weekends could be unlawful. So, the best way to ensure employees are not under the influence is to rely heavily on reasonable suspicion testing.
Develop a policy
Your drug-free workplace policy should include identification of the circumstances in which you will perform drug testing. For example, you may choose to test post-offer or pre-employment, with reasonable suspicion, post-accident, or randomly. Of course, you should always follow applicable state and local laws. Ensure you clearly state your intentions of mandating a drug and alcohol test based on “reasonable suspicion” specifically. A general policy statement is not enough to permit testing if the policy does not include testing for reasonable suspicion.
The policy also should discernably indicate what will happen if an employee violates the policy. This includes failing a drug test, refusing to take a drug test, adulterating a specimen, and using drugs in the workplace. They may be subject to disciplinary actions up to and including termination of employment. Tandem HR assists clients in the development of drug-free and reasonable suspicion policies.
Train your leaders on reasonable suspicion
Marijuana may be present for days after consumption. Therefore, it is best to use reasonable suspicion testing to prove an employee is currently under the influence. This test considers objectively observed behaviors. It should be second nature to all managers and leaders in your organization.
Below is a step-by-step guide for administering reasonable suspicion testing in the workplace.
1| Receive complaint
Concerns that an employee is under the influence often come from co-workers before management notices. Do not send an employee for testing based on hearsay or gossip, but document the complaint. Include what the employee observed, when they observed it, and if others witnessed the situation. Also, determine if the behavior is new or has happened in the past. This could help you establish a pattern of behavior.
2| Observe the employee
At least two members of management should make a firsthand observation of the behaviors. Immediately after a concern is voiced, go to this employee’s work area for observation and documentation.
3| Document observations
All observers should document their observations, including any abnormal behaviors. This will allow the employer a defensible position should drug testing be needed. The observers should be as specific as possible in their descriptions but not attempt to diagnose the situation. In most cases, an employee under the influence will show behavior or physical indicators to justify drug testing.
4| Remove the employee from their work area
If the employee is working around machinery or heavy equipment, is in a safety-sensitive job, or is acting out in a way that appears to be a safety concern for themselves or others, you should immediately remove the employee from the work area. Ask them to wait in a conference room or an office.
5| Assess the situation
If more than one observer witnesses and documents behaviors that create suspicion, the manager or HR may proceed with step 6. If there is a disagreement between observers, managers or HR may need to bring in a third party to observe and help decide. Alternatively, managers or HR may determine that reasonable suspicion does not exist and that no further action is necessary. They should still document the complaint, observations, and determination.
6| Meet with the employee
The manager and HR should meet with the employee when reasonable suspicion testing is warranted. Clearly explain what was observed and documented by management. State that to rule out the possibility that the employee violates the policy, the organization will send the employee for a drug or alcohol test. Explaining it in this manner shows that the employer has not jumped to any conclusions but is simply following procedures. And, if the employee is not under the influence of drugs or alcohol at work, the test will prove this. If the employer has not previously obtained a drug testing consent, they should bring it to this meeting and get the employee’s signature.
7| Prepare transportation
Employers should not allow employees suspected of being under the influence behind the wheel of a car. Ensure the employee does not have to drive to the testing center or home afterward. Employers may opt to contact a cab or Uber ride for the employee. The employer should pay all expenses. Therefore, it is good to have these types of arrangements coordinated in advance. Another option is for the manager to escort the employee to the testing center and drive the employee home afterward.
8| Get the employee tested
Contact the drug test facility to advise that an employee is on the way for reasonable suspicion testing. Make sure the employee has instructions on how to obtain a ride home after testing is complete.
9| Wait for test results
The employee needs to know what to do and expect the following day. Company policy should address this situation, but if not, the employer should set a consistent practice. In most cases, the employer does not want an employee to return to work until the test results are available. Employers are not obligated to pay a non-exempt employee for any time missed waiting for test results. However, the employer may be required to pay exempt employees for time off according to the Fair Labor Standards Act.
10| Respond to employees’ refusal to take the test
If the employee refuses a test, the employer should refer to its drug and alcohol policy. A policy may state that refusal will be treated as a positive drug test result. Or, it could result in immediate termination of employment. If the employee refuses a cab and attempts to drive home, the employer should never physically restrain the employee. Note the employee’s car make, model, and license plate number. Then, contact the authorities to report concern that the employee is driving under the influence.
11| Respond to either positive or negative test results
POSITIVE RESULTS: An employer has the option to terminate immediately for positive test results if this is the employer’s common practice, policy, or precedence. Organizations may wish to seek legal counsel on how to proceed.
NEGATIVE RESULTS: If the drug or alcohol test results are negative, the manager or HR should contact the employee and return him or her to the previous job and work shift as soon as possible. It’s best practice to pay the employee for any hours missed while waiting for negative test results even if you’re not required to pay them by law.
Creating an all-encompassing reasonable suspicion testing policy can help significantly decrease an employer’s chance of an accident in the workplace, hold a defensible position for any adverse action taken, and increase company morale and productivity.
Tandem HR supports clients in the creation and enforcement of a drug-free workplace and reasonable suspicion workplace policies. Additionally, we properly coach managers and leaders to conduct reasonable suspicion testing in the workplace. Contact your Tandem HR Consultant today to discuss how this process can help your organization remain safe and compliant.