Random Drug and Alcohol Testing and the Right to a Safe Work Environment
Privacy doesn't trump safety rights when it comes to drug and alcohol testing in the workplace.
In May, 2017, Quest diagnostics reported the American workforce had reached a 12-year high for illicit drug use. The rate for positive cocaine test results in post-accident urine drug tests was also more than twice that of pre-employment drug tests.
As employers, these kinds of statistics trigger alarm bells. We ask ourselves a very important question:
“What don’t I know about my workforce?”
Random Drug and Alcohol Testing
More and more, I see clients pushing to implement leading indicators in their oil & gas, construction, manufacturing and mining businesses. A random drug and alcohol testing program is one such indicator because it is a proactive approach to safety and has the potential to uncover impaired cognitive ability before an incident occurs.
Though random testing has numerous benefits, it is not without controversy. In both past and present, random testing implementation has involved numerous appeals, filed injunctions, rounds of arbitration, and even the Supreme Court of Canada in the Irving Pulp and Paper, Limited case.
However, the core of the debate always remains the same, personal privacy vs the right to safety.
The Right to Privacy v. the Right to Safety
The TTC (Toronto Transit Commission) is one example of an organization that has successfully implemented random drug and alcohol testing. In 2008, they introduced a fitness for duty policy for all new workers. In 2011, they moved to include random drug & alcohol testing in that policy to combat the growth of a substance abuse culture for employees in safety-sensitive and management positions.
The workers’ union opposed the random testing policy. However, their injunction was refused based on the belief that an employee in a safety-sensitive position who is prone to using drugs and alcohol will either be detected or deterred with the implementation of random testing. The reasonable grounds on which they made this decision included the difficulty in detecting drug and alcohol misconduct. Reasonable suspicion testing can be helpful, but it is not always easy for supervisors to identify signs of impairment. (Learn more in "Signs of Drug Use in Employees: Behaviors That Might Signal Drug Use on the Job".)
Random testing is valuable for all sectors with safety-sensitive work, including the Oil & Gas sector. Entrop v. Imperial Oil was another interesting case of random drug and alcohol testing implementation and delved into whether or not alcohol abuse would be considered a disability under Canadian law and whether or not an employer could test for alcohol abuse at all without being legally discriminatory.
|Free Download: What Your Company's Drug and Alcohol Policy May Be Missing (and How to Get It Right)|
Why Random Testing?
SureHire 2016 stats showed a 22.14% alcohol reasonable suspicion rate and 14.58% of participants testing positive in the random testing program.
Once a pre-access or pre-employment test is complete without a positive result, there is little incentive for an individual prone to substance abuse to change their behavior. The Supreme Court of Canada ruled that it was acceptable to randomly test when it was statistically determined that random workplace testing results in a significant decline in the rate of positive drug tests of employees. (Learn more in "How to Avoid Adulteration in Employee Drug Testing".)
General Counsel for the Institute for a Drug-Free Workplace, Matt Neiman, agrees that when the stats show increases in illicit drug use, “It should serve as a reminder to employers and employees that there is no substitute for vigilance in any effective effort to thwart the potential impacts of workplace substance abuse.”
What is a Random Testing Program?
When considering implementing random testing, third-party administrators (TPAs) offer two random testing methods: Stand Alone and Consortium. It is recommended that companies with eight employees or more choose Stand Alone, in which names are not pooled with other organizations and tests can be customized based on an employer’s needs. Consortium, often selected by companies who employ eight people or fewer, employs a method where employees are pooled with candidates from other organizations during the selection process to help avoid overly repetitive testing because of the small potential pool of employees from a single company.
Random testing programs use lab-based oral fluid testing and/or DOT (Department of Transportation) approved lab-based urine tests. With both tests, employers can extend the drug detection time-frame between 12 to 48 hours. Both tests also identify the presence of amphetamines, methamphetamines, THC, Cocaine, Opiates, Phencyclidine, Methadone, Propoxyphene, Barbiturates, and Benzodiazepines (which include sleeping pills and tranquilizers). A breathalyzer is used for alcohol testing. (Learn more in "Three Types of Drug Testing: What Employers Should Know About Lab Testing, POCT, and Express to Lab Testing".)
Depending on your TPA’s tool kit, you may pull tests for both drugs and alcohol, or only drugs or only alcohol. DOT (Department of Transportation) random testing pulls 50% for drug and 10% for alcohol. SureHire’s Random Testing Tool Kit tests 50% drug and 50% alcohol, meaning every individual who is pulled for random testing does both a drug and alcohol test.
Implementing a Random Drug and Alcohol Testing Program
Before implementing a random drug and alcohol testing program, it is essential to have the following steps completed.
1. Update your policy to include random drug & alcohol testing. Have employees sign off on the policy showing they have received a copy of the policy and understand it.
2. Hire a third-party administrator (TPA) that complies with both USDOT guidelines and Canadian model. A reliable TPA should have the following.
- At least one RST (Reasonable Suspicion Training) trained supervisor on board
- They will use a USDOT approved true random number generator for employee and contractor selection
- Completed Consortia training
- Will work with you to find a trusted SAP (Substance Abuse Professional)
3. Train a Designated Employee Representative (DER) on your team and employ an internal process capable of managing and supporting the list of workers you will be testing.
Among the core values named on the walls and websites of safety-sensitive industries, safety always appears. Safety is important to everyone and every company's bottom line. It is also the biggest challenge employers face. Random drug and alcohol testing is a valuable addition to in your organization’s safety tool box. (Learn more in "State Drug Testing Laws: What Should Employers Know?")
Thinking about implementing a random drug and alcohol testing program? For more information, contact SureHire at 1-866-944-4473 or email [email protected]