More Wisconsin workers testing positive for coke, meth, pot
Workforce drug positivity is at the highest rate in a decade, including in Wisconsin, finds an analysis of more than 10 million drug test results. What can business leaders do about it?
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There’s also the question of a slippery slope, especially in a time when marijuana use is already legal in some form in 29 states. Do employers create headaches if they’re drug testing employees and maintaining a zero-tolerance policy concerning drugs?
“Employers do struggle with the idea of a slippery slope here,” Johnson states. “I generally advise my clients to consider the culture of their business and how they, as business owners, want to handle these issues. Some employers feel that as long as a substance is illegal, there should be a zero-tolerance policy, but they are also keeping abreast of changes in state legislatures and prepared to adjust their policies if necessary.
“Some employers have moved to a ‘post-incident-only’ testing procedure,” Johnson continues. “This can protect the employer from potential workers’ comp claims, but avoids some of the initial pre-employment screenings that can prohibit the hire of candidates who use recreationally only.”
Then, too, there are many employers who don’t drug test employees at all, though virtually every company has a drug policy on the books.
Perhaps more so than other drugs, the case of marijuana demonstrates why employers still need to tread lightly.
While nine states and the District of Columbia have approved the use of recreational marijuana, the drug is still against federal law, and the bottom line here is that employees can still legally be drug tested and can still be fired for failing a drug test, notes Johnson.
According to Johnson, a number of efforts are currently underway to develop an accurate method, akin to the Breathalyzer for alcohol, to measure actual marijuana impairment. Such a test will be useful not only for employers, but also for police and prosecutors trying to determine what constitutes driving under the influence of marijuana in states where recreational marijuana is legal, Johnson explains. “Unfortunately, this type of technology is not yet available and employers must continue to draw their own lines in the sand.”
Best practices for employers
If an employee’s actions — either on or off of the job — negatively impact the business, it is still the employer’s right to terminate or discipline employees as they see fit. A non-drug related example of this might be if a delivery driver gets a DUI on a Saturday night, says Johnson. Alcohol is legal, but they can still be terminated based on company policy of having a clean driving record.
The best practice for any employer is to determine their culture and philosophy when it comes to these types of issues, set policy accordingly, and apply it consistently across all employees and in all situations, advises Johnson. “The inconsistent application of policy is a huge contributor to legal suits of discrimination being filed against employers.
“Many employers state in their drug-free workplace policies that they will give an employee a second chance after a confirmed and verified positive drug test result,” Johnson says. “Sometimes the second chance agreement is called a last chance agreement. Basically, when an employee tests positive for drugs or alcohol, the employer has a policy that allows them to keep their job based on certain conditions of continued employment. These conditions of continued employment often vary from case to case depending on the situation.
“Other drug-free workplace policies may include a clause indicating that if an employee discloses addiction prior to an incident or failed drug screening, the employer may allow for a leave of absence to deal with the challenges of addiction,” Johnson adds. “Clearly, this is a gray area when it comes to marijuana, but can still be very applicable for other drugs. Again, the key to applying any of these policies is consistency of application.”
Ultimately, an employer has the ability to institute new policies as they see fit, provided that they meet legal standards. If an employer feels that limiting their candidate pool is worth the risk, it is completely their decision to make, Johnson says. If an employer is considering the implementation of drug screening, they should make sure that current employees are made aware of the company’s policies, and incoming employees must also be made aware as they arrive that taking a drug test is a required part of the application process.
In addition to signing a copy of the substance abuse policy, it is imperative to also hang information about the substance abuse policy in an area where it can commonly be reviewed as updates are made. Break rooms and meeting rooms are ideal areas for this type of information. This display can and should include all policies and procedures related to the maintenance of a drug-free work zone, and they also may include information about the serious health effects of abusing drugs and alcohol.
In the unfortunate event that an employee needs help, having an employee assistance program (EAP) in place can also be very helpful, Johnson suggests. “Overcoming substance abuse is a serious challenge, and one that need not be handled alone. Even if the company does not offer to pay for these services directly, many states offer a wealth of information on public health services and counseling for those struggling with substance abuse.”
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