ComplianceLegalJanuary 24, 2021

Implementing workplace policies for drug and alcohol issues

Dealing with drugs and alcohol in the workplace can be especially sensitive, but problems in this area can have a negative impact on a business in several areas and shouldn't be ignored. Different substance abuse strategies are available for employers to implement and sometimes required by law, including a written policy, employee assistance programs and under certain conditions, drug testing. Federal contractors may be required to comply with the Drug Free Workplace Act.

According to statistics, drug and alcohol abusers among employees account for increased absenteeism, more on-the-job injuries to themselves or others, and lower productivity. This means higher costs for businesses through:

  • sick leave
  • overtime pay
  • insurance claims
  • tardiness
  • workers' compensation
  • friction among workers
  • damage to equipment
  • poor decisions
  • damage to the business's public image
  • employee turnover

For these reasons, businesses may choose to have a policy that addresses the use of drugs and alcohol. While a smaller business will rarely want to have an all-out substance abuse program (unless required by federal or state law), you may want to adopt certain strategies if you feel they can be effective in fighting substance abuse in your workplace. Should you decide to have a separate written policy that addresses drugs and alcohol in the workplace, you may also want to consider instituting a drug testing program and/or providing an employee assistance program.

In addition, be aware that some businesses are required to have certain policies in place. For example, Department of Transportation regulations require that many employers engaged in commercial transportation industries require workplace drug abuse programs. If you are in an industry that may require drug and alcohol policies or programs, be sure to consult your attorney to determine your obligations under the law.

Federal contractors are subject to special requirements regarding drugs and alcohol in the workplace under the Drug Free Workplace Act.

Complying with the drug free workplace act

If you are a federal contractor (for $100,000 or more) or grantee, you must comply with the Drug Free Workplace Act of 1988. Under this Act, you are required to:

  • certify that you will provide a drug-free workplace
  • publish a statement notifying your employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and stating
  • what action will be taken against your employees for violations
  • establish an ongoing, drug-free awareness program
  • require each employee directly involved in the work of the contract or grant to notify you of any criminal drug statute convictions for a violation occurring in the workplace
  • notify the federal government of such a violation
  • require the imposition of sanctions or remedial measures for an employee convicted of a drug abuse violation in the workplace
  • continue in good faith to comply with the above requirements

You are not required to:

  • establish an employee assistance program
  • implement a drug testing program

Written substance abuse policies

You may want to consider having a written policy about drugs and alcohol in the workplace and you may be required to have one in certain instances. There are two types of policies you can have:

  • One that indicates that you will not tolerate drug and alcohol abuse in the workplace, but which does not provide for drug testing.
  • One that does provide for drug testing.

Should you desire or be required to have a policy, consider including the following elements:

  • the unacceptability of drug or alcohol use on the job
  • what constitutes an infraction of work policy and rules regarding substance abuse
  • the consequences if an employee is found to be engaged in substance abuse
  • information on the availability of treatment and rehabilitation services, if any
  • your policy on the use of alcohol at company nonwork activities (such as parties and picnics)
  • your position on drug testing and, if you test, the consequences of a positive test result
  • acknowledgment that any problems with substance abuse are considered medical in nature and will be treated as such (i.e., confidentially)
  • recordkeeping procedures that assure confidentiality

Employee assistance and drug testing programs

Employers may want to consider implementing an employee assistance program (EAP) in their workplace. EAPs are a type of employee benefit designed to help employees and families of employees whose attendance and job performance are adversely affected by job stress, personal problems, or alcohol or substance abuse. Also, EAPs are generally incorporated into an employer's overall health promotion and wellness program and may be one of several methods used to reduce health care costs.

Although many models for EAPs exist, most share common features. The EAP will usually provide telephone or personal contact on a confidential basis for employees with questions, crises, or needs. Most EAPs also provide referrals to substance abuse clinics or other services, education of all types, health care management, and wellness information. A good EAP is designed to educate employees and to identify problems as early as possible.

If you are considering an EAP, there are three approaches that are particularly helpful for small businesses:
  • you may join a consortium of other businesses to offer EAP services
  • you may work with a trade or local business association to start an EAP
  • if you lease your employees, the leasing agency might provide an EAP as one of the benefits provided to employees

Instituting drug testing programs

If you start a drug testing program, be sure it's fair, accurate, and legally defensible.

Keep in mind as well that some employers are legally required to set up drug testing programs.

Many jurisdictions have state laws on drug testing. Many states permit random tests or tests of all job applicants provided that proper notice is given, but some require you to have reasonable or probable cause to believe that the employee who is being asked to submit to the testing is using drugs on the job or is under the influence of drugs while on the job. Some of the states offer discounts on workers' compensation premiums for employers with qualified drug testing programs.

In deciding whether to institute a drug testing program and the development of that policy, ask the following questions:

  • Will you test all employees? If not, what will be the basis for selection?
  • Will the testing be done as part of a routine annual physical, done on a random basis, unannounced, or done only for cause?
  • How frequently will you test?
  • If you test only for cause, how is cause defined? Who will determine it?
  • Is the test for cause mandatory firing? What happens if the employee refuses to be tested?

Educate your employees regarding policies and programs

In order to educate your employees about your business's stance on substance abuse and any program you may have, you should:

  • Tell new hires about the policy (orientation is a good place for this).
  • Periodically remind current employees about your commitment to making the program work.

An education and awareness program can:

  • Explain your policy to your employees and the consequences of using drugs, on or off the job.
  • Tell your employees how to get help with their drug and alcohol problems.
  • Inform employees on how drugs and alcohol actually affect the productivity of your business, product quality, absenteeism, health care costs, and on-the-job injury rate.
  • Explain testing procedures, if you have any, with special attention to the consequences of testing positive and procedures for ensuring accuracy and confidentiality.
Mike Enright
Operations Manager
small business services


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