With the beginning of a new year, it is time to make resolutions and review old, outdated workplace policies. Employers who conduct drug and alcohol testing should consider updating their drug and alcohol policies in 2016, particularly if they have not done so in several years. Here are the top 10 reasons why:

1. Medical Marijuana Is Here To Stay – while marijuana still is illegal under federal law, the federal government is slowly backing away from that position and more and more states are enacting medical marijuana laws. Some of these state laws prohibit employers from discriminating against medical marijuana users. Employers should review all applicable medical marijuana laws carefully while considering the potential legal and safety risks.

2. Educate Your Employees About the Dangers of Prescription Painkillers and Heroin. There has been a nationwide prescription painkiller epidemic for quite some time. Because these drugs are prescribed so freely by the medical profession, many people do not understand the dangers which include addiction and death. The National Safety Council urged employers last year to educate employees about the risks of using opioid pain medications while also taking steps to avoid potential liability in workers’ compensation and personal injury litigation.  Employees also should be educated about the link between prescription painkiller abuse and heroin addiction, another nationwide epidemic.

3. Consider Whether Your Drug Test Panel Is Effective. Do you still use the basic 5-panel, consisting of marijuana, amphetamines, cocaine, opiates and PCP? If yes, consider whether that panel really is effective, considering the prescription painkiller epidemic. Talk to your drug testing vendor to ascertain positivity rates for the popular illicit drugs in your geographical area, and consult with legal counsel to ensure that it is legal to expand the panel (some states have restrictions).

4. If Testing For Prescription Drugs, Be Careful When Making Employment Decisions. Although employers may find it appropriate to expand their drug testing panels to include drugs such as prescription painkillers, they must ensure that they do not make adverse employment decisions based on erroneous ideas about those prescription drugs. We have previously written about the EEOC’s interest in suing employers who make adverse employment decisions based on incorrect assumptions about an applicant’s or employee’s use of prescription drugs (e.g., refusal to hire a methadone user). 

5. Require “Safety-Sensitive” Employees to Report the Use of Prescription or Over-the-Counter Medications That Could Impact Safety. Employees in dangerous jobs should not report for work while using prescription or over-the-counter medications that could affect their ability to perform their jobs safely. This report will trigger the employer’s obligation to have an “interactive dialogue” with the employee (under the Americans with Disabilities Act and comparable state laws) to determine whether a reasonable accommodation is possible or whether the employee poses a “direct threat” to the health or safety of himself or others.

6.  Do You Have a Comprehensive Definition of “Refusal to Test”? Many workplace drug and alcohol testing policies are deficient because employers do not clearly define what constitutes a refusal to test. For example, employees selected for drug testing often attempt to delay the test. Does your policy make it clear that employees who do not report for testing when selected for testing will be terminated?

7.  Train Your Supervisors To Make Reasonable Suspicion Determinations. Do your supervisors effectively enforce your drug and alcohol testing policy? Do they really know what constitutes reasonable suspicion? Do you suspect that most of your supervisors just ignore the drug and alcohol policy? Update the policy to make supervisors’ responsibilities clear and train them to enforce the policy diligently and effectively.

8. Is Your Post-Accident Testing Provision Effective? Many employers struggle with a clear description of the circumstances that will trigger a post-accident or post-incident drug or alcohol test. Some states restrict or prohibit post-accident testing. Even where it is permissible, a post-accident testing policy must be clearly written and consistently enforced.

9. Customer Demands For Drug Testing Are On The Rise. More and more customers are demanding that employers drug test employees before the employees may access the customers’ premises to perform work. Consider how you will handle these situations, including employees who may refuse to test or test positive.

10. Is It Legal? Employers must ensure that all provisions of their drug and alcohol testing policies comply with applicable federal, state and local laws. Failure to do so may lead to monetary damages and statutory penalties.