Construction business owners and managers struggle with two opposing forces: the health and safety of their workers as drug and alcohol abuse rises, and the challenge of replacing those who may test positive. Watch the webinar to learn what you should do to address this crisis.
What is the long-term prognosis for substance abuse in the construction industry?
Drug use is not anticipated to decline, so it is important that employers are proactive in educating employees on expectations of being fit for duty and in accommodating some substance usage in non-safety sensitive positions.
Can a company randomly test an employee?
Random testing is required by certain DOT regulations; for non-DOT regulated employees, the answer depends on applicable state and local law. Nonetheless, it is recommended that you first notify employees of the workplace rules, including random testing provisions within the drug free workplace program. Notification should be in writing and a consent form may be required.
Considering how marijuana is more commonly used for recreational and medical purposes, are there legal implications if companies remove marijuana from drug screening?
Other than DOT regulations, workers’ compensation credits, and other possible contractual obligations, there are no current legal implications for omitting marijuana or any drug from a drug testing program.
What happens when an employee is notified that a random auditor is coming for an inspection and, knowing that they are under the influence, quickly contacts HR to avoid getting into trouble? Can this be prevented?
There should be a provision in the drug testing policy that states that assistance must be requested prior to “testing day”. There should also be a provision that does not allow employees to self-identify as having a substance abuse problem with the purpose of avoiding drug testing or disciplinary action. Moreover, it is recommended to also note that that assistance can be provided following a positive test.
What if employees are union contract employees and don’t know the specific language regarding the drug and/or alcohol testing policy?
The collective bargaining agreement must be consulted in this case. Generally speaking, all policies in the collective bargaining agreement should be reviewed regularly.
Does alcohol abuse put you at the same amount of risk as drug abuse? How would you test to see if an employee has been drinking?
Both present significant and generally unacceptable levels of risk. Alcohol testing can be done with breath alcohol testing, blood testing, or urine testing.
If an employee has an injury due to a drug or alcohol impairment, can it be considered a workers’ compensation claim?
Workers’ compensation laws vary state to state. In states which have laws on the books, in order for a workers’ compensation benefit denial to be upheld in court, the employer must prove that the injured worker was impaired and that the impairment was the cause of the accident. Proof of these two facts is usually obtained from witnesses and from drug tests. If the claim is denied and the employee continues to lose time away from work due to the injury, consider how your company’s ADA, FMLA, paid and unpaid leave policy, and/or Short Term Disability policy may come into play.
Can a medical provider give training and/or advice as to whether a person can work if taking a specific medication?
It is the employer’s responsibility to determine if an employee is fit for duty. A medical provider or physician can provide advice, but ultimate responsibility for workplace safety rests with the employer. If the employee does seek the opinion of a medical provider, it is recommended that they provide a copy of their job description to that provider so that they can fully understand the nature of their job. Moreover, if the employer disagrees with the medical opinion, there should be a strong basis for doing so.
What are examples of non-safety sensitive functions beyond the office, for instance, on a construction site?
This discussion would be pursuant to the interactive process under the ADA, and would need to be addressed on a case by case basis. Generally speaking, potential “construction” activities that would be non-safety sensitive could include housekeeping (sweeping/debris pickup), quality inspections, estimating, operating a “hydration station”, assisting HR with development of training materials, etc. Most importantly, when these accommodations are provided, it should be clear that the intent is that they are temporary and transitional in nature, and not permanent.
How do I encourage employees to come forward with a substance abuse problem especially when doing so will jeopardize their jobs?
Many employers implement an Employee Assistance Program (EAP), and have created extensive marketing and communication efforts to promote these programs. The purpose would be to discuss the EAP in a positive light, so that employees feel encouraged to take advantage of the services offered. This also creates an opportunity for the employee to seek help anonymously.
