The current opioid crisis is having an impact on the labor pool. As with many social issues, drug and alcohol abuse can dramatically impact the workplace. Drug and alcohol abuse statistics across the country and in Minnesota continue to show disheartening trends. Opioids alone killed about 33,000 Americans in 2015.
According to a recent report from the drug testing company Quest Diagnostics, “Drug use in the American workforce, fueled by illicit drugs, reached the highest positivity rate in 12 years, according to an analysis of more than ten million workforce drug test results.” Barry Sample, PhD, senior director, science and technology, Quest Diagnostics Employer Solutions, explained, “This year’s findings are remarkable because the increased rates of drug positivity for the most common illicit drugs across virtually all drug test specimen types and in all testing populations.” The most significant increase was in positive tests for marijuana.
Not surprisingly, the problem is particularly acute in Colorado and Washington, two states that have recently legalized the use of marijuana. Employers there are having trouble filling positions due to the high percentage of applicants testing positive. As reported in a recent article in the Washington Post, an HR manager at a Denver grocery supplier is quoted as saying, “Finding people to fill jobs is really challenging. Some weeks this year, 90 percent of applicants would test positive for something.”
An employee under the influence of drugs not only reflects poorly on the company’s image, but also can be tremendously costly. If an employee under the influence of drugs or alcohol injures another employee or customer, the company could be liable for personal injuries caused by the employee and is exposed to increased workers compensation premiums and possibly OSHA fines and other expenses and penalties.
To mitigate this risk, many leading employers employ employee drug-testing. The National Safety Council reports that 57 percent of employers say they perform drug tests. Employees unable to pass a simple drug test are liabilities waiting to happen. Notwithstanding this reality, many employers forego drug testing, and not merely to control costs. In some cases, employers fear that drug testing will decimate their ranks and applicant polls. In addition, there is a natural resistance to conducting this kind of testing out of respect for employee privacy.
Nevertheless, most employers believe that drug-testing is a wise investment that pays off in the end. Unlike most states, drug testing in Minnesota is strictly regulated by Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA). DATWA imposes strict substantive and procedural guidelines that must be implemented and followed. For example, an employer must have a written drug testing policy, give notice of the existence of the policy to applicants and employees, and make the policy available for review by applicants and employees. Employers also may test only in limited circumstances, such as:
A condition of hire after an applicant’s conditional job offer;
As part of a routine physical examination required no more often than annually;
Following an incident in which employee drug or alcohol use “is likely” to have been a contributing factor to:
an employee’s injury incurred arising out of and in the course of employment;
caused another person to be injured in the course of the Employee’s employment, or
caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident;
A reasonable suspicion that an employee is under the influence of drugs or alcohol;
Random testing, but only for employees in safety-sensitive positions;
Employees referred by the employer for chemical dependency treatment or evaluation, or who are participating in a chemical dependency treatment program under an employee benefit plan.
(Many employers test only in limited circumstances within the above guidelines.)
Again, with the exception of drug testing required by federal law (e.g., DOT testing for safety-sensitive positions) in order to conduct any drug testing, an employer must remain compliant with DATWA. An employer that violates DATWA may be liable for damages and attorney’s fees.
Note also that several states have legalized marijuana. Applicants and employees who visit those states could test positive for their legal use of marijuana and its derivatives.
The Avisen Bottom Line: If you decide to test for the use of illegal drugs in Minnesota, strict compliance with DATWA is required. Ensure that your policy and employee handbook are compliant and that your applicants’ and employees’ privacy rights are properly recognized and protected.
Bill Egan is a seasoned Employment Law Attorney backed by over 33 years of proven, veteran experience. He specializes in navigating businesses through conflict resolution in the workplace.