Thursday, September 29, 2011

Written Policy Must Address Whos, Whens Of Employee Drug Testing

Employers should be developing or revising their drug testing policies to take advantage of the tools crafted earlier this year by the Arizona Legislature to soften the workplace impact of the Arizona Medical Marijuana Act (AMMA).  One key to an effective written policy is that it needs to describe which employees or prospective employees are subject to drug and alcohol testing and when.

Remember that the Arizona Drug Testing of Employees Act, into which these new tools were incorporated, requires that all compensated employees, including officers, directors and supervisors, be included uniformly in any testing policy adopted. 

The Act allows an employer to elect to test only prospective employees, only employees working in safety-sensitive positions, only those involved in workplace accidents, or any other identifiable subset of the entire workforce, so long as the uniformity requirement is met.   What that means is that a company testing only prospective employees would have to test those offered conditional employment as janitor as well as those offered the position of company president. 

A good argument can be made that the Act does not require testing of business owners who are paid solely from the profits of a small business, as they are technically not “compensated employees.”  Beware of excluding from a testing policy business owners who draw a regular salary, however, as there is no definitive court decision on the meaning of the term.  A court could find owners paid a salary fall within the group to which the legislature intended the uniformity requirement to apply.

The policy also must specify the circumstances under which testing may be required.  The Act is very broad in terms of what circumstances are permissible, so long as the employer can establish that the testing is for a job-related purpose consistent with business necessity.  If that standard sounds familiar, it should.  It is the same showing an employer must make to sustain a practice that causes a disparate impact on a class protected by the federal antidiscrimination laws.

The key is to make sure the written policy specifically discloses that testing will be conducted in all of the ways you intend to use it.  Among the permissible circumstances in which a policy could authorize testing are in an investigation of possible individual employee impairment on the job, as well as reasonable suspicion that an employee may be affected by the use of drugs or alcohol in a way that may adversely affect job performance or the work environment.  How those two circumstances, both stated specifically in the Act, intersect with each other is an open question.  A cautious written policy would require reasonable suspicion for testing in both circumstances.

The Act also allows a written policy to permit testing in more fuzzy circumstances, including maintenance of safety for employees, customers, clients or the public at large, and maintenance of productivity, quality of products or services or security of property or information.  Employers relying on those justifications should make sure they have thought through the implications and can marshal the arguments to support the job-relatedness and business necessity of such a policy.

Post-accident testing is also authorized, but the Act requires that the testing take place as soon as practicable after the accident and that it encompass all employees who the employer reasonably believes may have contributed to the accident.

Random testing is specifically permitted, but public employers must be aware of other limits on random testing, which Arizoneout will examine in a future post.

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