Under Texas and federal laws, there is almost no limitation at all on the right of private employers to adopt drug and alcohol testing policies for their workers. Government employers are not so free, due mainly to court decisions holding that testing employees without showing some kind of compelling justification violates government employees' rights to be safe from unreasonable searches and seizures.
A company should do it only after careful consideration of many factors, including applicable statutes and regulations, contract or insurance requirements, and combating some perceived problem with substance abuse among the workers.
Drug testing, for example, may be mandated for some types of employees, as is the case with workers subject to The .S. Department of Transportation Mandatory Testing Guidelines. Some federal contracts and grants may require employers to adopt drug-free workplace policies and possibly even to provide for drug-testing of employees.
Other employers may be under no legal obligation to do testing, but feel it is needed due to reports that some employees may be unsafe due to being under the influence of drugs or alcohol. Regardless of the reason for testing, it is essential to carefully draft the policy and consider the various legal issues.
What is a good, basic drug testing policy?
Most policies start out by emphasizing in positive terms the need for safety in the workplace and adherence to job requirements and work quality, and go on to cite goals such as improving safety and productivity. The policy should address certain questions:
1. What will be considered a violation?
2. Which employees will be covered?
3. What disciplinary measures will result from violations? (necessary)
4. Will the company allow rehabilitation? ( not required by Texas or federal law)
Like any policy, it should be given in writing to all employees. Employees should sign a written acknowledgment that they have received a copy of the policy. Employers usually make signing such a policy a condition of being hired. While it is common for such a policy to be part of an overall policy manual, it is probably best to have each employee sign a separate form consenting specifically to the search and testing policy.
What if an employee refuses to sign the policy?
It would be legal to fire the employee for refusing to sign an acknowledgment of the policy, but that should not be done until and unless the employee has been warned, preferably in writing and witnessed by others, that discharge can result from refusal to sign.
Can a company test some, but not all, employees?
It is legal to test some, but not all, employees, but an employer must be careful. The policy should cover all employees in specific job categories. For example, the company could make all workers who operate machinery or vehicles subject to drug testing, but not require testing of clerical staff. Some employers test only those employees whose jobs are inherently risky. Some contracts specify that workers coming into a client's facility will be subject to drug testing. If that happens, the contractor does not also have to test its other employees who do not go onto that client's premises.
What about discipline or rehabilitation for employees who test positive?
Most companies notify employees that testing positive for drugs or alcohol will result in immediate termination. Some companies allow a chance for rehabilitation and a return to work under probationary conditions, but this type of second chance is not required under Texas or federal law. If a worker is allowed to return to work after a positive test result, it is generally under a "last chance" agreement providing for monthly random tests, a year's probation, and immediate termination for any subsequent positive test result.
What if an employee refuses to cooperate?
An employer should never physically force an employee to submit to a search, due to the risk of civil and criminal complaints involving assault, battery, false imprisonment, invasion of privacy, and intentional infliction of emotional distress. However, employers may provide in the policy that employees who refuse to submit to a reasonable search under the policy, or who refuse to undergo a drug test, will be subject to immediate termination. In case of such refusal, termination should not occur until the employee has been reminded of the policy and of the risk of termination for non-compliance.
Under what circumstances should testing take place?
A typical policy will provide maximum flexibility for the employer. A company is allowed to do both random and "for cause" testing. Both circumstances should be spelled out to let employees know under what circumstances they can be called upon to submit to a test. For example, a "random" test might involve periodically testing all covered employees twice a year at intervals specified by the company. The company might send two employees each week for testing, but any given employee would only be sent twice in a year.
"For cause" circumstances might include such things as reasonable suspicion by a supervisor that an employee may be in violation of the policy, reports from any witnesses, bizarre, unsafe, or threatening behavior on the employee's part, or involvement in a work-related accident ("involvement" means either being hurt or causing or contributing to the accident).
Pre-employment Drug Testing
Pre-employment drug testing is something that some employers choose to do for applicants. It is not regarded under the ADA as a medical examination, so it may be done at any point of the selection process, but due to cost issues, most companies restrict such testing to the final candidates for a position. Regarding who pays for the test, most companies assume that burden.
Texas and federal law do not have specific provisions one way or the other, but if requiring an applicant to pay for a pre-employment drug test would have the effect of discouraging minority applicants, or else effectively result in less than minimum wage for the employee's first paycheck, EEOC and/or the U.S. Department of Labor may have concerns under EEO or minimum wage laws. It would be best to let doubtful cases be reviewed by employment law counsel prior to such testing.
Even though drug tests themselves are not covered by the ADA, the results from such tests are considered medical records and should be kept in a separate, confidential medical file just as other types of medical records must be maintained under the ADA.
What about confidentiality?
Test results should be considered absolutely confidential. Negligent release of test results could result in legal action over issues such as invasion of privacy, intentional infliction of emotional distress, and defamation. Due to the federal law (ADA), it is necessary to maintain such records in a separate, confidential medical file. As a practical matter, the HIPAA privacy rule can make it difficult for employers to obtain specific drug test results from the testing lab.
For that reason and others, employers should have employees sign a properly-worded consent form allowing the testing lab to release such results to the employer, and allowing both the testing lab and the employer to release the results to TWC and to any other agency or court dealing with a claim or lawsuit arising from the test.
Does it violate confidentiality laws to release the test results to TWC?
No. Many employers misunderstand the laws in this regard. Even highly-regulated and otherwise restrictive DOT testing procedures allow employers to release the results to the decision-makers with courts, government agencies, or arbitrators dealing with claims arising from the drug test, and drug testing labs are required to release the results to employers upon request in such situations, There is simply no substitute for the specific drug test results in an unemployment claim.
Should you have any questions or concerns about the Legal Issues addressed in this blog post, please reach out to Derek Saunders, Keith Strahan, or Richard Armstrong of our firm, shown here: https://lfbrown.law/our-team
