As we reported just last week, the EEOC has announced a $750,000 settlement with Dura Automotive Systems over its drug testing policy.
I have to admit that the EEOC's announcement caught my eye because I just completed a 50 state survey of drug testing laws in order to craft a policy for a multi-state employer. Perhaps its because those state statutes are fresh in my mind that Dura Automotive's drug testing policy caused me to go "Whoa."
I won't rehash Dura Automotive's policy since my blogging partner, Richard Cohen, did an excellent summary of the policy and problems last week. See Employers: Don't Fire Employees for Taking Legally Prescribed Meds).
One thing we did not discuss is the fact that a lot of states have drug testing laws. In some of these states, compliance with the law is voluntary and employers' policies must only comply with statutory provisions if the employer wants to avail itself of some of the benefits of the law.
Those benefits can add up for employers. In some states, having a drug testing policy can result in 5% reductions of workers' compensation benefits, limits of liability if an employee is terminated after testing positive, and the ineligibility for workers compensation and/or unemployment benefits if an employee tests positive.
These laws do have a lot in common with each other, but some of them have very specific policy requirements that must be contained in an employer's written policy. Those include such things as the following:
- listing all substances tested,
- advising employees and applicants whether over the counter and legally prescribed drugs will be tested,
- putting a notice in any job advertisement that testing will be required
- giving employees a right to confidentially explain positive test results, and
- setting forth documentation requirements for an employee sent for testing based on a supervisor's reasonable suspicion.
The bottom line is drug testing is not as simple as having an employee pee in a cup.
Employers need to make sure that their drug testing policies comply with federal and state laws, as well as case law regarding privacy rights.