Drug Testing Policies: How To Create Psychological Safety For Employees With Substance Use Disorders

How not to run afoul of federal, state, local, or workers’ rights laws

A new study by Quest Diagnostics shows that workforce drug test positivity has climbed to its highest level in two decades. Specifically, “[t]he rate of positive drug test results among America's workforce reached its highest rate last year since 2001 and was up more than 30% in the combined U.S. workforce from an all-time low in 2010-2012.”
 
Drug and alcohol testing can be a minefield for employers, especially in fields such as truck driving, construction, and healthcare, where on-the-job drug use can lead to critical safety issues. The legalization of recreational marijuana in particular has complicated matters and prevented some employers from taking action based on drug tests, and the ambiguity of opioids (many have legal prescriptions) has blurred the lines on what is acceptable and what is not.
 
Consistent application of your drug and alcohol testing policies is important, as is making sure they do not run afoul of federal, state, local, or workers’ rights laws. But more importantly, employers need to make sure that their drug testing policies do not increase the stigma about substance use disorders (SUDs), and that employees have confidential access to effective treatment options, before and after they test positive for drug use.

Historically, there have been opposing views on drug testing. The more punitive approach, adopted by some, essentially spells out the last chance for employees that have failed a drug test and subsequently asked for help. 

Employees are put on watch with the premise of “if you use drugs again, you’re terminated.” There are companies utilizing this approach that once failed, the company refers employees to an employee assistance program (EAP), but the disconnect between the EAP and care provider is too large that the employee ends up not receiving the help they need. If employers try leading with a punitive message and then a referral, instead of assuring employees that they have made the right choice in seeking help, it further exacerbates the stigma we face with addiction today. 
 
Alternatively, there are companies that are redefining what a drug-testing policy looks like, performing regular drug tests among employees, but for those that do not pass, instead of being put on notice, they are offered assistance and assurance that the company wants the employee to stay employed and be the most successful, best version of themselves they can be. 

They provide inpatient and virtual treatment options, allowing employees to work on themselves while remaining employed. In return, they feel valued and receive the help they need. When you take into consideration that fewer than 10 percent of people receive treatment for substance use disorder and 70 percent of people with addictions are in the workforce, what would the workforce look like if organizations tried the latter approach? 
 

What to Know About Drug Testing 

While in 2011, SHRM reported that 57 percent of companies performed drug testing, by 2021, many were discontinuing the practice. Why? Labor shortage. Employers desperate for workers relaxed their policies in order to enlarge the applicant pool. 
 
However, drug testing is still widely used - there is still a growing market that is expected to reach $11.7B by 2028. Safety is still a primary concern, especially in industries, such as government, health care and hospitals, manufacturing, automotive, and transportation and logistics.
 
The Substance Abuse and Mental Health Services Administration (SAMHSA) has published a Model Plan for a Comprehensive Drug-Free Workplace Program, and it acknowledges the role drug testing plays. The five pillars of the model plan are:
 

1. Development of a comprehensive written policy 
2. Supervisory training 
3. Employee education 
4. Availability of employee assistance programs 
5. Identification of illegal drug users, including drug testing “on a controlled and carefully monitored basis.”

 
The combination of numbers 4-5 is especially important - because employers, who provide drug and alcohol testing have a responsibility to also provide access to treatment.

If your company has decided to proceed with a drug or alcohol testing policy, here are some things to consider on the back end - when employees test positive.

• Lead with the carrot, not the stick. The end goal is for the employee to recover and remain employed. It’s not to punish the employees. This message needs to be front and center of your program. On a related note, be careful about the language used in the program. References to “final chances” are not conducive to employee mental health, or putting employees in the right frame of mind for recovery. 
• Familiarize yourself with The Americans with Disabilities Act (ADA), which protects recovering and recovered alcoholics and drug addicts from discrimination. This can complicate the enforcement of drug testing policies. The ADA covers employers with 15 or more employees, but the regulations do give employers significant rights to ensure alcohol- and drug-free workplace, and test employees for illegal drugs and for the use of alcohol. The guiding principle is that an employer may not ask an applicant about the existence, nature, or severity of a disability, including questions, such as, “Are you taking prescription drugs?” 
• Always provide a treatment option. I’ve seen some policies that go from positive drug tests straight to termination. Unless the employee is a repeat offender, he or she should have the option for assistance, and presuming the employee has company-provided health insurance, the employer should provide it.
• Offer both total abstinence and harm reduction programs. Zero tolerance drug and alcohol programs were popular 10-20 years ago, but now a growing number of physicians advocate an approach called harm reduction, which meets the patient where they are – which may mean helping them reduce substance use initially rather than eliminate it. This is often achieved with medication-assisted treatment (MAT) – using prescription medications such as Buprenorphine, an FDA-approved medication to treat opioid use disorder (OUD), and Naltrexone, an FDA-approved medication to treat both alcohol use disorder (AUD) and OUD. 

  
Combined with counseling and cognitive behavioral therapy (CBT), MAT has been proven to help people reduce or eliminate substance use, and maintain their recovery. Many patients who start out on a harm reduction path eventually graduate to total abstinence.
 
Taking a supportive rather than punitive approach is good for the employee and the employer. Given the current labor shortage, employers should be looking for ways to retain their people – not terminate them for an illness. Drug testing policies must always be combined with treatment options, for the good of both the employee and employer.