Liability and a Drug-Free Workplace

drug-free-workplaceThe competitive environment in which we live and work can tempt many business owners to cut corners to ensure they can keep their products and services competitively priced. Some things simply should not be cut, however, because they elevate the employer’s risk while only reducing the overhead marginally. A case in point is the importance of maintaining a drug-free workplace.

Even in today’s highly competitive marketplace, making sure that your employees are drug free and sober on the job is of paramount importance. Drug testing isn’t required in every industry, but regardless of the bottom line, if you want your business to thrive, you need to be confident that your employees are drug free.

Avoiding Liability

The number one reason given by business owners for mandatory drug testing is that it helps them avoid legal liability. The liability extends to co-workers as well as customers and clients. If an employee is intoxicated and causes harm to another person, or damages property, the business owner can be legally liable. So, when a business owner requires drug testing, it helps him weed out troublesome employees, thus mitigating the potential for problems. However, requiring drug tests to avoid liability issues will only work if you know the laws related to the process. Otherwise, you could be looking at a whole new set of liabilities.

Legal Limits

Drug testing has been recognized by various United States courts as an action that invades the privacy rights of citizens. As such, limitations have been placed on how and when an employer can require a current or potential employee to submit to a drug test.

Overall, those with the most rights are current employees since they could potentially lose their job if a drug test came back positive. Job applicants, however, only lose out on a job opportunity. Since the courts have fought to find a balance between individual and business rights, there are a few limitations that could apply to you and your business if you require drug testing. For example, the most commonly known laws related to drug testing revolve around prescription medication. Under the Americans with Disabilities Act of 1990, employers are not legally allowed to discriminate against someone who takes a legally prescribed medication that would otherwise be illegal.

Another example of legal protection related to employment drug testing is the act of requiring a specific group of people to be tested for drugs, while forgoing the requirement for others. If an employer only tested his Catholic employees, for example, he would be in violation of discrimination laws. An exception to this rule can be made if the employer requires drug testing for everyone who serves a specific role (ex: delivery drivers). It would not be considered discrimination if the same employer chose not to test the office staff.

 

The above are general scenarios associated with limits on drug testing. If you have a concern about a specific situation, and whether or not you are legally allowed to drug test someone, contact your state’s labor department.

4 thoughts on “Liability and a Drug-Free Workplace

  • January 16, 2015 at 2:17 am
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    I find your comment interesting “If you want your business to thrive you need to be confident that your employees are drug free”. The employer – employee relationship is essentially contractual whereby the employer has the goal of profit in mind, so if possible, profit is idealised and essential to continue trading. Desjardins & Duska (2001) supports this theory stating “drug use adversely affects job performance thereby leading to lower productivity, higher costs, and consequently lower profits”. As such an employer would want to be proactive in drug testing employees to ensure a drug free workplace and ensure production and profit. However, drug tests do not measure how impaired a person’s performance is; they measure how much of a drug is in the person’s system (The Open Polytech of New Zealand, 2014).
    An employee may still be able to perform the tasks of their given role with trace elements of drugs in their system; drugs that could potentially be the result of prior use a number of days, or weeks, earlier. A drug test is defined by providing a scientific analysis of a sample at a given time. Drug tests do not distinguish between the amount of drugs taken and the resulting level of impairment. Marijuana (cannabis) is currently the most commonly used illicit substance in the world (National Institute of Drug Abuse, 2014). Cannabis can be detected in your system for up to six weeks via a urine sample (The Good Drugs Guide, 2014). In comparison, alcohol may impair an employee significantly on the work environment, lowering productivity and putting others at potential risk. Direct results may include decreased productivity and company profit, but impairment may be for a minimum amount of time.
    In response to your comment “When a business owner requires drug testing, it helps him weed out troublesome employees”. Although an employer is entitled to a certain level of performance from his employees, the level of output of an employee varies from one person to another. An employee could have trace elements of drugs in his system but not necessarily be unproductive compared to another employee who may be drug free but inefficient. Desjardins & Duska (2001) state “Drug use may affect performances, but as long as the performance is at an acceptable level, the knowledge of drug use is irrelevant”. As an employee I would fear a drug test if I believed my employer was using it to ‘weed out’ those employees that he no longer wanted.
    An Act Utilitarian would view drug testing as morally acceptable as it would minimise harm in the workplace and provide a safer environment for many. By analysing the consequences of the action, an employer needs to consider other employees, customers or other stakeholders that may be at risk. Deontological ethics would not support drug testing in the workplace however, as it would be seen as an invasion of an employee’s privacy, although this could also be argued that an employee has a duty to be in a condition to be at their most productive.
    Harm and the potential for an employer to be held liable is a fair argument and I can understand why this is the number one reason given by business owners for mandatory drug testing. Whilst drug testing in the workplace may act as a deterrent to a person who may use drugs for recreational purposes outside of work hours and not want to be caught, it will be essentially impossible to inhibit a chronic user or addict. Mandatory drug testing would be of benefit to an employer by recognising this chronic user and providing means for removal of the employee from the workplace. Knowledge of drug use after incident may not be the best means of preventing harm within the workplace. The example of alcohol provides us with the understanding that more financially viable options, such as a dexterity test similar to what the police use to test drunk drivers, could be used to measure employee capabilities. Within New Zealand the Health and Safety in Employment Act 1992 places a duty on an employer to provide a safe workplace (Department of Labour, 2013). The Employment Courts decision in the NZ Amalgamated Engineering Printing and Manufacturing Union Incorporated & Ors v Air New Zealand Limited (2004) case found random drug testing was allowed in safety sensitive areas. The Health and Safety in Employment Act 1992 specifically states that the term “hazard” includes a situation where a person’s behaviour may be a source of harm, such as situations resulting from drugs or alcohol (FindLaw NZ, 2014). According to Desjardins & Duska (2001) the only two morally acceptable and effective means of drug testing are regular and random testing of employees selected for probable cause.
    A printed workplace policy around drugs and alcohol should be developed in consultation with all levels of an organisation, looking to create a drug free culture within a company. Although there is little research completed around the effects of drug use on productivity in the workplace (Shepard & Clifton, 1998, pp.1-30), it is in the employer’s best interests to avoid negative relations between employees and management in relation to drug testing. I feel that drug testing should take place in industries where there may be prevalent risk involved to others if an employee is under the influence of drugs. While I believe that individuals have a right to privacy I also believe if an employee presents a threat of harm to other employees or customers, then drug testing should be acceptable within the workplace.

    References

    Desjardins, J., & Duska, R (2001). Drug testing in employment. In T.L. Beauchamp & N.E. Bowie (Eds.), Ethical theory and business (6th ed., pp. 283-294). Upper Saddle River, NJ: Prentice Hall

    The Open Polytech of New Zealand, (2014). Module Two 71203 Business Ethics, Lower Hutt, NZ

    The Good Drugs Guide, (2014) http://www.thegooddrugsguide.com/cannabis/faq.htm#07

    National Institute of Drug Abuse, 2014 http://www.drugabuse.gov/publications/media-guide/most-commonly-used-addictive-drugs

    Department of Labour, (2013) http://www.dol.govt.nz/workplace/knowledgebase/item/1361

    Findlaw NZ, (2014) http://findlaw.co.nz/articles/4308/workplace-drug-and-alcohol-testing.aspx

    Reply
  • January 24, 2015 at 2:43 am
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    In my opinion, it’s just right if everyone should get a random drug testing since we all know its illegal.

    Reply
  • February 1, 2016 at 2:12 am
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    Thoughts.
    Whilst avoiding liability would be an important issue for a company is this really the main reason that organisations should be drug testing staff? How does this fit with laws relating to drug testing in the workplace and will a business really thrive simply by making sure they have drug free employees?
    The Ministry of business, innovation and employment (2013) says that there aren’t any exact employment laws around workplace drug testing. However they do have a suggested list of factors that can be considered when deciding whether to carry out workplace drug testing on staff, such as health and safety, industry relevance and the privacy and rights of employees. A business using drug testing on employees to avoid liability is not on that list. Employers are bound by the Health and Safety in Employment Act 1992 to provide a safe working environment and businesses have a duty to consider the safety of their customers, clients and the general public. So the prevention of accidents or injury to others is definitely a reason why employers may want to carry out workplace drug testing.
    But drug testing all employees in an organisation especially if just to avoid liability may not be reasonable or acceptable. DesJardins & Duska (2001) say that not all jobs and not all employees pose a danger to co-workers or other people and drug tests should only be taken out on employees working in safety sensitive jobs where it is clear and present that the possibility of harm could come to themselves or others. This could include such employees as airline pilots, medical professions such as surgeons, drivers such as bus, courier or truck drivers, anyone dealing with hazardous material or operating safety sensitive machinery (DesJardins & Duska, 2001). Employers would need to take into account the type of industry their employees work in and the type of work that their employee’s will carry out, when considering if their employee’s role would have an impact on other’s safety (Ministry of business, innovation and employment, 2013)
    An employer should help prevent possible harm coming to other people and property from an impaired employee but is using drug testing for impairment and thus avoiding liability really paramount and the only issue to consider? There can be many reasons why an employee may be impaired in their work and be a possible danger in employment where safety is critical. Using workplace drug testing and just singling out staff that have tested positive to some form of drug use would not be a total measure for ensuring a completely risk and liability free business. Staff can be impaired in their ability on the job from factors such as tiredness which could be caused by long hours at work, employees with two or more jobs or shift workers, impairment can also be caused through illness, being stressed, depression or grief.
    Another aspect to think about is the effectiveness of the drug tests and what they actually show. The ESR use three types of drug testing – oral fluid, urine and hair test, and they can pick up evidence of drugs from 4 hours up to a year depending on the test applied (ESR, n.d.) Buchanan as cited in Gillespie, (n.d.) points out drug tests only test if a drug is present in an employee not whether an employee is actually impaired, it does not show that an employee who had drugs several days or months prior to the test being taken is impaired on the day and unsafe to carry out their job. So it would be logical and beneficial that drug tests should not be the only test given to employees in safety sensitive areas. Other tests for cognitive skills, dexterity, psychological and judgment tests could be carried out on employees in these types of positions to help pick up anyone who may be fatigued or impaired to a state where they may be a safety risk (DesJardins & Duska, 2001: Buchanan as cited in Gillespie, n.d.).
    Employers also need to consider the importance of the individual rights and privacy of their employees when considering drug testing in the workplace and these are covered under laws such as the Human Rights Act 1993, NZ Bill of Rights Act 1990 and the Privacy Act 1993. Testing for drugs is method of gathering personal information which can provide an employer with knowledge regarding an employee’s personal life and their private activities outside the work environment. If an employer requests, obtains or uses that information for reasons that are irrelevant to or violates the employment contract then that is an invasion of the employee’s right to privacy (DesJardins & Duska, 2001).
    There are vast complex reasons why a business will or will not thrive but an organisation that has employees constantly worried about being drug tested, whilst trying to maintain their privacy can have an effect of lowering moral, could lead to discrimination, especially if they are seen as you say “troublesome employees”, and cause a rift between staff and management. The organisation would do well to consider all the possible safety risks, whilst also taking into account the rights of its employees, rather than just concentrating on testing for drug use and avoiding liability. A business where employees and employers can communicate and be honest with each other, where management and staff promote good safety policies and resolve issues together would do far more towards gaining a thriving, productive, health and safety conscious business.
    References.
    DesJardins, J., & Duska, R. (2001). Drug testing in employment. In T. L. Beauchamp & N. E. Bowie (Eds.), Ethical theory and business (6th ed., pp. 283–294). Upper Saddle River, NJ: Prentice Hall.
    ESR (The Institute of Environmental Science and Research).(n.d). Workplace Drug Testing. Retrieved from http://www.esr.cri.nz/workplace-drug-testing/
    Gillespie, S. (n.d.) Storm in a pee cup. Retrieved from https://www.drugfoundation.org.nz/content/storm-pee-cup
    Ministry of business, innovation and employment (2013). Laws on drug testing in the workplace. Retrieved from http://employment.govt.nz/workplace/knowledgebase/item/1361

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  • June 13, 2016 at 7:54 pm
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    It makes sense that drug testing is mostly for the sake of liability. It would be awful to have something bad happen in the workplace, and find it’s because someone was intoxicated. When someone is intoxicated or on drugs, it makes accidents way more likely to happen, and I bet it’s a pain because it’s something you can avoid.

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