(Published in the Idaho Business Review, June 2008) 

There is no debate that abuse of drugs and alcohol by employees, whether on or off the job, is a problem for employers.  According to the Drug-Free Workplace website of the Office of National Drug Control Policy, “By industry, significantly higher rates of current drug use were reported by those employed in construction and mining [than in other job groups] (12.3%); wholesale and retail (10.8%); service—business and repairs (9%); and finance, insurance, real estate and other services (7.7%).  The construction and mining industries have the dubious distinction of the highest percentage of full-time workers with “past month heavy alcohol use.”  (www.whitehousedrugpolicy.gov/prevent/workplace/demog.html).

 In addition to safety concerns, employee drug and alcohol abuse affects job performance and attendance.  The U.S. Department of Health & Human Services states that “[w]orkers who reported past month illicit drug use were more likely than those who did not report such use to say that: they had more than three employers in the past year (5.7 percent vs. 2.3 percent), they had missed work for more than two days in the past month due to illness or injury (11.6 percent vs. 6.5 percent), and they had skipped work more than two days in the past month (4.4 percent vs. 1.6 percent).”  The Office of National Drug Control Policy states that many employers believe that “. . . drug testing reduces injuries and workers' compensation claims in the workplace.”  A 1995 study referred to by the Office of National Drug Control Policy found that “. . . companies engaged in random drug testing in combination with pre-employment testing reduced their mean workers' compensation claims per 100 employees per year by 63.7% over a 4-year period while the ‘control group’ of employers (employers not conducting drug testing), experienced a 19% increase during that same time period.” 

In many industries, workplace drug testing is a no-brainer decision for employers wanting to maintain a safe working environment.  There are many resources available to employers where they can find good, basic information concerning workplace drug testing.  Initially, an interested employer should review The Idaho Employer Alcohol and Drug-Free Workplace Act, Idaho Code §§ 72-1701, et.  seq.  The Act establishes voluntary drug and alcohol testing guidelines for employers.  If the employer complies with the Act, an employee who tests positive for drug or alcohol will be deemed to have engaged in misconduct under unemployment security laws, resulting in denial of unemployment benefits.  Idaho Code § 72‑1701.

Some highlights of the Act include:

I.          COST OF TESTING

A.  The cost of testing must be borne by the employer.

B.  Time spent for drug testing is compensable.

C.  Re-testing is paid for by employee.  [§ 72‑1706]

II.         DETAILED REQUIREMENTS
Detailed requirements for sample collection and testing.   [§72‑1704]

III.      DETAILED, WRITTEN DRUG TESTING POLICY
A detailed, written drug testing policy is required and must be communicated to all employees.  [§72-1705]

IV.       RIGHT TO DISPUTE
 Employee has a right to dispute and explain positive test result.  [§72-1706]

V.        LIMITATIONS ON EMPLOYER LIABILITY
Good faith reliance by employer is a defense.  [§72-1711(2)]

VI.       CONFIDENTIALITY
           Confidentiality is required.  [§72-1712]

VII.      WORKER’S COMPENSATION
           Possible reduction in worker’s compensation premium. [§72-716]

If an employer is going to institute a workplace drug testing policy, here are some things to be considered.

In the case of a post-incident drug test, does the employer have a policy outlining a designated person to drive the employee to the drug testing facility?  A worker involved in a jobsite accident should be taken by a supervisor to the site of a post-incident drug testing facility – do not let the worker drive himself there!
 
If the employer is collecting random samples, does the employer have a well-established “chain of evidence” procedure set up so that the testing results cannot be disputed later because the evidence was tampered with or mishandled.  Use of a reputable, certified testing company may be the best option.

If the employer conducts the tests, what happens to the paperwork outlining the results?  Does the employer have a policy to ensure that the results remain confidential?  Drug testing deals with sensitive medical information which must remain confidential.

Workplace drug testing policies are a great tool to enhance workplace health, safety, efficiency, and a company’s reputation.  Drug testing alone, without additional policies necessary to ensure privacy and accurate testing, is not acceptable. 

Jeff R. Sykes is a partner with the law firm Meuleman Mollerup LLP.  He represents businesses and individuals with legal problems and concerns involving contracts, construction, insurance, employment, and real property matters.  Mr. Sykes can be reached at 208.342.6066, or at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .; more information at www.lawidaho.com.