As an employer, you should be committed to a drug-free and alcohol-free work environment that protects both your employees, your customers and the general public.
Drug testing your employees is an important component of that safety commitment. However, while many employers test before hiring an applicant, nearly two-thirds of employers never conduct a drug or alcohol test on current employees, according to a Society for Human Resources study in 2011.
When employers do test current employees for drugs, employees test positive about 4.2% of the time, according to the latest numbers from the annual Quest Diagnostics Drug Testing Index. That number is creeping up and is at its highest level since 2004.
Even if you are a small employer with only 25 employees, that still means that one of your current employees could test positive for drugs right now. What if that one person is the delivery driver, the heavy machinery operator, the EMT, the security guard or any other safety sensitive employee working for you? Are you willing to take a chance with the safety of your other employees and your customers?
That only 4.2% of employees test positive for drugs or alcohol is actually a little low considering how many people are actually addicted to those substances. The National Survey on Drug Use and Health in 2016 estimated that 8% of all Texans have a substance abuse disorder, with three-quarters of those Texans addicted to alcohol. The rest are hooked on marijuana, meth, heroin, cocaine and prescription opioids, in that order.
As a Texas employer, you don’t have to allow employees to be impaired at work. Continue reading Why Drug Test Your Current Employees?
Hiring in Texas can be done in a very efficient and effective manner that reduces your chances of violating employment laws if you follow this simple hiring checklist. While large employers may need to add many more steps, I have found in 25+ years of law practice that many small employers aren’t even doing these simple steps, but should be:
- Is one well-trained centralized manager with human resources experience doing the hiring instead of a group of supervisors who might ask the wrong questions?
- Do you have a job description of the job for which you are hiring so you know the job-related qualifications?
- Did you carefully word your job advertising so as not to discriminate?
- If you require that an application be completed, is your application form up to date and without legal pitfalls?
- Does the interview focus only on job-related qualifications and not personal information?
- Do you stay away from open-ended questions like “Tell me about yourself”, which could elicit all kinds of information from the applicant that could be considered the basis of a discrimination claim?
- Is the interviewer using an outline so that each applicant is asked the same questions and you can compare apples to apples rather than relying on the interviewer’s conversation skills and “gut reaction”?
- Do not ask questions in the interview about the following topics. If this seems like a whole bunch of rules to remember, try focusing on this one rule: If your question isn’t related to how the applicant could perform the job duties, don’t ask it.
- Race or color (photographs should not be requested)
- Gender or marital status or sexual orientation
- Whether applicant has young children, what his/her daycare arrangements are, or other family questions.
- Age, including date of birth or when the applicant graduated from high school
- Religion, including “Where do you go to church?” and “What do you do with your Sundays?”
- Union membership or affiliation
- Criminal arrests or convictions (you can run a background check if you decide to actually offer the job, but you must comply with the Fair Credit Reporting Act in obtaining the background check)
- National origin or ethnicity (don’t ask about an applicant’s birthplace, accent, parentage, ancestry).
- Citizenship (only inquire into an applicant’s eligibility to work in the United States, not their citizenship).
- Education beyond what is necessary for the job (inflated educational requirements can have a chilling effect on minority applicants; therefore only ask educational questions that are relevant to the actual job responsibilities).
- What clubs and organizations do you belong to? What causes do you support? (this could reveal illnesses, religious beliefs, family issues, marital status, race and other grounds on which you could be accused of discriminating).
- Are you pregnant? Are you planning on having kids? (pregnancy and/or gender discrimination).
- Have you ever declared bankruptcy? (discrimination under the Bankruptcy Act).
- Is English your first language? Do you know that we have an English-only policy? (national origin discrimination)
- Do you have elderly parents or an illness in the family that would take you away from work? (disability discrimination).
- Do not ask the following questions in an interview that could violate the Americans with Disabilities Act:
- Whether an applicant needs a reasonable accommodation to perform the job, unless the disability is apparent or the applicant voluntarily divulges it.
- Details of an applicant’s worker’s compensation history.
- Whether the applicant can perform “major life activities,” such as standing, lifting and walking.
- Whether the applicant has any physical or mental impairments.
- Whether the applicant is taking prescription medication or any other lawful drugs.
- If the applicant has used illegal drugs in the past or has ever been addicted to drugs.
- Whether the applicant has participated in an alcohol or drug rehabilitation program.
- How frequently the applicant consumes alcoholic beverages.
- Certain questions are permissible under the ADA:
- Whether an applicant can perform the essential functions of the job.
- How the applicant will perform the essential functions of the job, if all applicants are asked this question.
- Whether an applicant needs reasonable accommodation for the hiring process.
- Whether an applicant can meet the employer’s attendance requirements.
- Whether an applicant has ever been convicted of driving under the influence of alcohol or drug if driving is an essential duty of the job.
- Whether an applicant is a current illegal drug user (drug testing the successful applicant after a conditional offer of the job is the best way to handle this).
Once you think you have narrowed your choices down to the applicant that you would like to hire, you can make a job offer conditional upon the results of these items: Continue reading Simple Hiring Checklist for Texas Employers
Can an employer in Texas still fire someone for smoking pot? For once, my lawyerly answer does not have to be “maybe”. Yes, you can fire an employee for testing positive for marijuana.
Unlike Colorado, Washington state, Oregon, Alaska and Washington, D.C., the Lone Star State still treats the recreational use of marijuana as illegal. It is also illegal to buy, sell, grow or even possess pot in Texas, so going to Colorado to buy it and then bringing it back to Texas is not an option.
If your written substance abuse policy tells your employees that you prohibit “illegal drugs”, then you have the right to enforce that policy regardless of whether the pot is illegal under federal, state or local laws.
Therefore, a Texas employer can still require a drug test of an applicant, a current employee, an employee involved in an accident or when the employer has a reasonable suspicion of drug use. If the test shows that the employee has used marijuana, the employer can discipline or fire the employee for violation of the company substance abuse policy.
But what if the employee claims that he is smoking pot for medicinal reasons? Continue reading Pot Smoking Still Grounds for Termination
The U.S. Centers for Disease Control and Prevention (CDC) reports that nearly 2 million people in the United States are addicted to prescription pain killers. One of those people might be your employee.
Opioid painkillers such as Vicodin and Oxycontin that are hydrocodone and oxycodone based are commonly prescribed to treat work-place injuries and other types of chronic pain. But these drugs are often over-prescribed and abused by patients and addiction is very common. In fact, in the last ten years, painkiller addiction rates have risen to epidemic proportions in the United States, the CDC said.
Injured or chronically ill workers who develop an addiction to painkillers represent a health and safety concern to themselves and to fellow workers. They can also create potential liability risks for you, the employer, and can lead to a less efficient and less productive workforce.
An obvious first-step in dealing with any kind of drug problem in the workplace is to be proactive and have a drug-testing policy in place that allows pre-employment testing, random drug testing, testing after workplace accidents and testing based on reasonable suspicion.
Then train your managers to look for the signs of substance abuse, particularly in employees who slack off at work, take unusual and frequent breaks, are no longer punctual, and who occasionally slur their speech or make unwarranted mistakes in their work. While many employees may be able to manage their chronic pain responsibly and without abuse, you should be aware of the warning signs of abuse and educate your managers on them as well. These signs can include bloodshot eyes, sudden weight loss, a lack of grooming, poor attendance or other uncharacteristic behavior.
Before you take action against an impaired employee, you need to consider and weigh both the safety of your employees versus the risk of a lawsuit by the employee who is abusing drugs. The Family and Medical Leave Act or the Americans with Disabilities Act may apply to this situation, so don’t make any hasty decisions without legal advice.
Many of my Texas clients also have offices in Colorado. Since that state legalized the recreational use of marijuana in November, I’ve begun receiving questions from my clients with locations in Colorado about their workplace drug use and testing policies. They want to understand their rights in light of the legality of marijuana in that state.
Legalized marijuana should be no more difficult for employers to handle than alcohol. If an employee is drunk on the job, you as an employer have a right to test him and to fire him for reporting to work under the influence of alcohol. An employee who is high on marijuana at work presents the same issue. However, marijuana shows up on drug tests long after the body has processed and gotten rid of alcohol. In other words, an employer testing on Monday won’t know that the employee was drunk on Friday night. But if the employee got stoned on Friday night, testing on Monday will reveal that fact. Employers are therefore concerned that they won’t be able to fire an employee who tests positive for marijuana use but can’t be proven to be high at work. This generates anxiety for safety-conscious businesses.
At this point in time in the Fall of 2012, marijuana is still illegal in the United States, and therefore in every state. Just because an employee isn’t in violation of Colorado state law by smoking weed, he is still in violation of federal law and can be in violation of the employer’s substance abuse policy if it is well-written. Therefore, as an employer, make sure your policy states that, along with being under the influence at work, the use, possession or sale of illegal drugs is prohibited, and illegal drugs should be defined as any drug that is illegal under municipal, state and/or federal laws.
The federal Department of Transportation announced in December 2012 that state legalization of recreational pot would not change the rules prohibiting marijuana use by employees in safety-sensitive positions such as truck drivers, pilots and school bus drivers. Therefore, explaining away a positive test for marijuana by saying it was used legally in Colorado will not be an acceptable excuse and will still subject truck drivers, for example, to suspension of driving duties. Employers can take the same approach by letting employees know that the employer’s safety requirements will not be affected by state laws legalizing marijuana and that employees will still be subject to discipline up to and including termination for any drug test that shows marijuana use.