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New York New Jersey FAQ: Employee Drug Testing at the Workplace

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for above-the-bar-logo-no12.jpgFAQ: I am concerned that several of my employees are often under the influence of drugs or alcohol. At least one of whom I confronted told me that he was on a prescription pain killer prescribed by his physician, who told him it was okay to continue working. I am worried about workplace accidents and the potential liability I could incur. Should I implement a drug and alcohol policy?

You pose an excellent question that affects every employer in this country, no matter how large or small the company. On the one hand, employers don’t want to invade their employees’ privacy or make them think that they don’t trust them. On the other hand, drug and alcohol abuse at the workplace is a major safety concern. Every year, thousands of employees are injured from accidents caused by drug and alcohol abuse. Employers face enormous, potential liabilities caused by such accidents involving employees who test positive for drugs or alcohol. In fact, many insurance companies will not pay out benefits if an employee involved in a work related accident ends up testing positive for drugs or alcohol. Furthermore, the U.S. government estimates that companies lose $82 billion in productivity every year because of substance abuse.

Just last year, the EEOC brought a lawsuit against a Michigan automotive parts company, Dura Automotive Systems (“Dura”), who was drug testing all of its production employees for illegal drugs as well as legally prescribed medications. For the employees who tested positive for prescription drugs, Dura suspended their employment until they stopped their prescription medication and terminated the employees who continued to take their medication. One of Dura’s employees, Mrs. Bates who was an assembly line worker, was fired because she was taking hydrocodone, a narcotic for her back pain prescribed by her physician. Dura thought it was trying to keep its workplace safe. However, Dura’s blanket policy of all or nothing has attracted nationwide attention as well as scrutiny by the EEOC. The EEOC charged Dura with violating the Americans with Disabilities Act for conducting drug tests which ended up disclosing the identities of employees who tested positive.

There are dozens of reasons for employers to test employees for drug and alcohol abuse at the workplace. Drugs and alcohol at the workplace are a widespread, serious issue in today’s workplace. A great number of employees are coming to work on either illegal drugs or prescription drugs and posing a safety hazard in many industries. This is both a health hazard to employees as well a huge liability to employers. Quest Diagnostics recently reported that prescription opiates went up 18% from 2008 to 2009 and up 40% from 2005 to 2009. The same data also showed that workers tested for drugs after accidents were 4 times more likely to test positive for opiates than those tested before being hired. Mark A. de Bernardo, executive director of the Institute of a Drug-Free Workplace, has stated “Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse, employers cannot afford not to address this issue.”

No matter how the courts decide the Dura case, your company should have some sort of drug and alcohol policy that is consistently carried out and communicated to all your employees. If you have an established drug-free workplace program that meets all your state requirements, you may be entitled to a discount on your workers’ compensation premiums. Our experienced attorneys have helped hundreds of companies implement a drug and alcohol policy and can customize a program specifically designed for your company.


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