Avoiding Legal Problems with Your Drug Free Workplace Program

Laws on drug-free workplace programs may be very complex, non-existent, or somewhere in between, but employers can follow some simple steps to set a foundation for ensuring compliance, fair application, and consistency.

The following best practices are helpful for all organizations that strive for a drug-free workplace:

1. Ask the experts
   Consult an employment attorney or legal counselor whenever you alter your drug-free workplace policy, or if you’re launching a new program.
2. Set clear penalties for policy violations
   If your policy includes a drug-testing program, state who will be tested, when they will be tested, and what will happen to employees with a violation.
3. Put it in writing
   Every employee should receive and sign a written copy of your drug-free workplace policy. Verbal agreements and unsigned agreements have little legal standing.
4. Provide training
   Ensure that all supervisors are trained on how to detect and respond to workplace drug and alcohol misuse. Maintain attendance logs of all training.
5. Document employee performance
   Maintain detailed and objective records on the performance of all employees. A documented performance issue often provides a basis for referring workers to get counseling or help.
6. Don’t rush to judgment
   Do not take disciplinary action against a worker or accuse a worker of a policy violation simply because the employee's behavior seems impaired. Instead, try to clarify the reasons for the employee's impairment. If drug testing is a part of your workplace policy, obtain a verified test result before taking any action.
7. Protect privacy
   Hold discussions with employees about potential violations in private. Have another manager present to serve as a witness. Never accuse or confront an employee in front of his or her coworkers.
8. Be consistent
   No individual employee or group of employees should receive special treatment. Inconsistencies in enforcement could be considered discrimination.
9. Know your employees
   Getting to know your employees from the start can help to identify problems later.
10. Involve employees
    Workers at all levels of your organization should be involved with developing and implementing your drug-free workplace policy. This will reduce misunderstandings about the reasons for having a drug-free workplace program and help ensure that your policies and procedures are fair to everyone.

Employers who follow these basic steps, and who strive to create programs that are fair, consistent, and supported by all stakeholders, will set a groundwork for staying on the right side of the law.