Gray Areas in Drug Testing Policy

Employers and employees alike express mixed feelings about drug testing in this thread. April 29, 2012

We have an upcoming project that requires a drug test to be taken by anyone who is going to be on-site installing. One of my installers has come forth and said that he likely will not pass. We are a small shop, not a lot of extra guys hanging around to take his place if he does not go. I already know the path I will take if he fails the test, but was curious what others would do in response to a failed drug test.

Forum Responses
(Business and Management Forum)
From contributor M:
Failed drug test = employment terminated. Period. I believe when an employee or a fellow worker or even a partner chooses to use drugs, you have an explosive situation on hand. Nothing good can come from it. If you really want to help someone, I have learned you still go with termination. If they deserve a second chance, let them get clean first, reapply and then pass a continuing series of new drug tests. Most of our workplaces demand a sharp mind for performance and safety. A worker with a drug clouded mind is simply shouting "I really don't care what happens." Always remember, you as an employer are responsible for an employee's choices and actions when they are working.

From contributor I:
There's plenty of ways to pass a drug test. Perhaps Google it. I don't care what others do, so long as it doesn't affect me. If you didn't know he did drugs before now, it probably has no effect on his performance at work.

From contributor L:
Here is my problem with drug testing. I do not use drugs, and I specifically avoid people in my life that use drugs - I don't have friends that use drugs, that I know of. But here is the big but. I will enjoy an adult beverage every now and then. Never at work, always after work. If alcohol stayed in my system for a month or two after I drank it, I would be screwed.

So if a guy does drugs when he gets off work and is totally fine when he comes in, no problem. If he is doing it during work hours, problem.

There is no way to tell. I am a realist and I know there are a lot of workers in our industry that smoke pot and other various drugs. A lot of times that is the reason they are workers and do not own their own companies. I take an approach that as long as it is not happening on my time, it is your life. I could really care less what my people do at night, as long as it doesn't affect my business.

Sure it is illegal, but hey, they have people for that. I get paid for cabinetry, not law enforcement.

From contributor S:
Ask him what it is he is on and to explain himself. Ask him why you should keep him employed. My policy is zero tolerance for hard drugs. Any drug or alcohol usage while on the job would lead to immediate termination. I probably wouldn't care if I found out an employee smoked some pot from time to time. That is as long as they are a good employee. I would make it clear to them not to even think about bringing/using anything anywhere near my business.

If I had to fire an employee for hard drug use, I may try to offer them their job back if they are able to clean up their act, and get sober.

From contributor L:
As a side note, one thing I wish I was in the position to do, but am not... One contractor I work for, his main on the job guy uses pot. Basically his super, but it's such a small company that the owner is the super, if you know what I mean. He has had this guy work for him over 20 years. He ended up paying for the guy to go to rehab, and paying him while he was there. I wish I had the ability to do that.

From contributor M:
There are a lot of areas in life where I can say "what he does on his time is okay by me," but not when that person is an employee. Those that have that kind of an attitude need to consider why it is okay for an employee to engage in behavior that could cause careless behavior when running a dangerous tool or driving to a jobsite for an installation. Once the drug-influenced employee has killed someone in a car accident, or totaled your vehicle, or maybe even cut off his hand in your shop, let's see where that don't-care attitude gets you. I once saw a fellow employee who had an ongoing drug and alcohol problem sue our employer for not getting him the proper help. It hurt my employer's case due to the fact that he had obviously known he was working the guy while he had these problems. While the employer did not lose, he still lost plenty in legal fees fighting this BS case. When an employer is putting his livelihood on the line every day, in many cases putting in his every nickel of savings to make a business work, I think any decent employee should at least make an effort to be completely sober and of good mind to bring his best effort. If not, he should be put in the road.

From contributor L:
When I said own time, I didn't mean get messed up before work started and come in messed up. Anyone would fire someone like that. I meant basically the night before work, assuming it is out of his system in the morning. I have sent people home before because I did not think they were fit.

I was actually speaking directly about one employee who I knew smoked pot. Funny enough, as the story goes, he got caught and had to become an informant for our local drug task force. But that is my only experience with this.

From contributor B:
If there were breathalyzer tests at the door every morning, that would be interesting.

From contributor A:
Very interesting discussion. Like others, I have no issues with people drinking or smoking pot on their time. Which means there is absolutely no question in my mind if they are sober. At the end of the day, if they come in hung over from the night before, it is likewise a strike. I want my guys bright eyed when they are using power tools that are unforgiving to everyone. I believe this is simply a safety issue versus a potential productivity issue.

From contributor M:
I think the bigger question here is "what does the off work behavior reveal about this employee"? Workers who use the majority of their off time enjoying the effects of drugs and alcohol are pissing away a lot of quality time that could be used for bettering their life. Whether it is through spending good quality time with their family, improving their physical health, learning new skills or improving their education. Time is a valuable commodity. I know plenty of cool guys who wasted their most valuable years in a fog. Now many can't get work because they are still operating at the level they were at 20 years ago, or lower because of broken families, health issues and usually a stinking attitude. I have no problem with a few drinks now and again - I like a cold beer as good as anyone, but I believe we are discussing people who bring this problem to work, that is, those who could not pass a sobriety check or drug test every single work day. I did at one point try to work a guy who drank pretty bad. I told him to decide what days he really wanted to work and to simply show up completely sober. Even after hearing him beg to keep his job, he would still show up 3 to 4 days out of every 5 in unstable shape. So the way I see it is, he preferred drinking to working, I preferred working to drinking, and it was a bad mix. I eventually had to let him go.

From contributor C:
Talk to your insurance agent for their take on keeping an employee whom you suspect or know has a drug or alcohol problem on the job. Once that agent has explained how you are placing your company and maybe your personal assets you've spent a lifetime building on the line for a single knuckleheaded accident or injury where your suspect employee is involved, you will probably change your attitude about keeping such a person on your payroll.

It certainly was enough for me. I get my fill of gambling every day in keeping the business floating and moving forward without taking the extra risk of keeping an employee on the payroll that could cost me everything because of their personal choices.

From contributor H:
I don't care if my guys/gals choose to smoke pot on their own time. In fact, coming in with a hangover from drinking is a lot worse in my book. If I think someone is high on the job, they will be warned once, then fired the second time. If they are not high and are simply slow wittedÖ they are still fired.

I know some shop owners feel like they have to accept this kind of stuff more than other industries. I can tell you that is not true. Microsoft has just as high a percentage of pot heads as cabinet shops.

If someone is using any kind of hard drug or abusing pills, they are gone. I was involved in drugs in a previous life and there is a big difference in how pot/alcohol and hard drugs affect people.

From contributor G:
Has anyone ever seen a documented correlation between pot smoking and accident rate? The medical/science/legal community can find correlations where there is one on any subject. I have yet to see one about pot smoking.

Alcohol is just a legalized heroin in my book, capable of incapacitating or killing a person within minutes, all with $20-30 worth of product or less. That sounds dangerous to me.

From contributor T:
Does he have a prescription for the pot?

From contributor W:
When the questioner mentions "drug test," I assume he really means "some drugs tested." Fact is, we are a drugged society, of both legal and illegal varieties. Watch 30 minutes of national news and count the drug commercials, look at the explosion of maintenance drugs in American culture, and you can see we are all addicted.

There are many legal drugs that may have a stronger effect on your workers than pot. But you are not allowed to test for, inquire about, or even restrict due to allegedly secretive health privacy laws. This is a real danger, and one that is massively under-reported since it might reflect badly on the drug manufacturers.

We single out the users of illicit drugs so we can keep the massive rehab machine fed and oiled, along with the prisons, lawyers, social workers and others that have come to rely on drugs being illegal for their livelihood.

Do not be afraid to think for yourself on this issue and take action as you see fit. Please do not buy into the fear mongering of the insurance industry and the failed War on Drugs and toe the line. This is the time for personal integrity. How would you explain your behavior to a grandchild inquiring about the loss of personal freedoms and endorsement of government intrusions? Look at Tunisia if you need an example.

I do not endorse the use of illegal drugs any more than I endorse the use of legal drugs. I must have motivated and solid employees, with no impairment whatever - from any source. I think you need to know your employees and their abilities so you can see if they are having any problems - emotional, drug, personal, or otherwise. They are your responsibility in your place of business, and it is wrong to shuffle that off to the government for some false peace of mind.

From the original questioner:
Lots of good advice here, both pro and con.

He has no prescription for it. This is a good employee, always here, always on time. If he was coming in stoned, this thread would not have been started.

Aside from the liability posts, it seems to me that while what an employee does on his/her own time is their own business, I also look at how others who know that person's habits are going to reflect on my company. What I don't need is customers not calling because we're going to send a crackhead to their house to install. Even if he isn't a full-fledged one, that is the perception.

From contributor N:
I know of at least one insurance company that bought a major seasonal resort. They tried to institute mandatory drug testing, but had to abandon their policy as nobody would work for them.

From contributor B:
What about the employee who does not use drugs, but objects to privacy-invading drug testing on principle? Do they have the right to refuse to comply with a drug test, without jeopardizing their job?

I respect the fact that this employee came forward to talk to you about this. Let him explain himself to you, and use your best judgment about his value to your company. How do you think he feels, knowing that he has tried to be a good employee for you, but his job is now threatened by the decision of someone else, who has different ideas of tolerance and personal privacy?

From contributor M:
Of course every employee should have the right to refuse a drug test, just like we have the right to refuse a sobriety test if pulled over by the state patrol while driving. There are consequences though. If I have an employee that refuses a drug test, then I feel I also have the right to not want this man on my payroll any longer. I once fired an employee for using legal drugs and medications on the job. He lied to me on his application about any existing mental or physical conditions, plus taking medications that could create unsafe situations when using our equipment. So, actually I fired him for lying about the medication. While this might seem unfair, I refuse to be a babysitter and an employer. After several days of seeing extreme mood and behavior changes in this employee after our lunch breaks, I called him out on it. When he confessed that he was taking depression medication (and who knows what else) I let him go. This guy was having obvious trouble staying sharp and alert and was a huge distraction. Even if not for the drugs, his performance was fixing to get him fired anyway.

From contributor B:
I think the difference here is that this employee was not required to take a drug test before being hired by the first poster. Now he might be required to take a test by a third party, without any basis on behavior or symptoms.

As far as I know, law enforcement must have some probable cause before administering a sobriety test. Should they be allowed to randomly or universally pull over drivers to test for this? Why is non-causal drug-testing for employees different than that?

Private employers have the right to insist upon whatever standards and testing they wish to administer, but they should realize that there are people who will stand up for their principles and refuse testing, or pass up employment opportunities because they abide by their principles.

There is a lot of discussion about the lack of qualified help on this forum, but some of the most qualified people are also the most principled, and will politely refuse to be considered guilty of some type of behavior until they are proven innocent by testing.

From the original questioner:
In this day and age you take work when it comes to you. The conditions were known when the job was bid, and the employees were advised of the conditions. Nobody had any concerns at that time. As far as refusing the test, of course they can. When the prevailing wage jobs come along, I never hear any pissing and moaning. I look at it as this is the job, these are the conditions, it's just that simple. Do I mind pissing in a cup for it? No. Do I feel it's an invasion of my privacy? No. It is what it is and it's sure a hell of a lot better than the unemployment line.

From contributor Y:
I smoke cannabis before work daily, as well as periodically throughout the day. I do not advertise this to my staff. And I'm not a misfit employee. In fact, I own the business. While I would not openly condone any employees doing the same thing, it's a matter of liability rather than principle. I trust myself on the machinery (and have a long track record behind that trust) and I'm pretty sure I can't sue myself. If the right employee was doing the same and was otherwise a responsible, trustworthy asset, I'd probably turn a blind eye so long as they kept me guessing instead of it being obvious. To me that's indication that it has little to no effect on their performance.

Even if I did not do such an evil, brash, reprehensible and incorrigible thing every single day of my life, I still would not ever take a drug test for anyone for any reason, plain and simple. Of course I also request prospective employees to not include a resume with their cover letter, so I might be considered erroneous data to the business community for a variety of reasons.

Despite (or because of) this, we make really neat stuff for really fun clients and have had no meaningful personnel or safety problems. We are a sort of boutique one of a kind design studio, so the dominant perspectives around here are those of artists rather than cabinetmakers.

If I were in the questioner's shoes, assuming this is a worthy employee and the drug in question is cannabis, I'd probably communicate to them that while they do work for me, *I'm* the one working for the client. As long as the client's happy, I'm happy, wink wink, nudge nudge (i.e. there's more than one way to study for a test). That is assuming I accepted the client's work despite their privacy-invading stipulations, which is unlikely, since I rarely find it compelling to work for people like that.

If this were alcohol or any other drug, I'd probably send the employee home and give them an open invitation to return when they feel they're ready to discuss their future. No babysitting here, just some independent adults making their own decisions.

From contributor U:
Not entirely relevant to working with machinery, but this thread reminded me of a couple of conversations I've had over the years. The first was with the president of a large high tech medical device firm who was in the process of being bought by an even larger multinational device firm. The purchaser wanted all current employees to pass a drug test. He said that the head of engineering came to him and said he refused to be drug tested. For a while it looked as though the guy might be fired, but in the end they did not make him take the test and he kept his job.

The second was with a group leader of a large software company. It was around the same time as the above incident, so I asked him if they drug tested. He was genuinely surprised, laughed and said that they would lose their best programmers if they did something so silly.

More germane to this thread, I did have an employee admit to me that he had smoked pot with a friend at lunch. I sent him home and told him that it was his one and only warning. Four years later, he is my best employee. From my experience, having people show up sick and loaded with cold medicine is more dangerous than an employee who gets high on his own time.

From contributor R:
Always remember he gave you the decency of telling you first. Put him on the floor and send someone else in his place and thank him. May even want to mention he might need to be able to pass one in the future. My best has his problems, but so do I. I trained in Los Angeles, so everyone had their vices there. Motto was "Not on the Job."

From contributor Z:
Whatís interesting is that there are definitely business owner points of view and employee points of view. From a strictly personal point of view, I believe cigarettes and alcohol kill scores more people than weed does. However, from a corporate point of view, drug use goes hand in hand with many other bad habits Ė tardiness, illness, health issues, accidents and last but not least, liability.

You may need to put your personal opinions and thoughts aside and decide the role you're assumingÖ employer, friend, or whatever. If it's employer, create a policy and stick to it. Itís a tough decision, but you ultimately have to decide - drug free, or get the job done (donít ask, donít tell).

If going drug free is a question, my guess is you havenít had the unfortunate opportunity to pick up someoneís fingers or call a family member with disturbing news, not to mention pay increased insurance rates because of an injury. All of which could have been avoided because even though you didnít ask, deep down, you really knew.