Under federal laws, there is almost no limitation at all on the right of private employers to adopt drug and alcohol testing policies for their workers.
However, drug testing is not for everyone. A company should do it only after careful consideration of many factors, including applicable statutes and regulations, contract or insurance requirements, and combating some perceived problem with substance abuse among the workers.
Drug testing, for example, may be mandated for some types of employees, as is the case with workers subject to U.S. Department of Transportation mandatory testing guidelines. Some federal contracts and grants may require employers to adopt drug-free workplace policies and possibly even to provide for drug-testing of employees.
Other employers may be under no legal obligation to do testing, but feel it is needed due to reports that some employees may be unsafe due to being under the influence of drugs or alcohol.
Regardless of the reason for testing, it is essential to carefully draft the policy and consider the various legal issues.
What is a good, basic drug testing policy?
Most policies start out by emphasizing in positive terms the need for safety in the workplace and adherence to job requirements and work quality, and go on to cite goals such as improving safety and productivity. The policy should address certain questions:
- What will be considered a violation? (necessary)
- Which employees will be covered? (necessary)
- What disciplinary measures will result from violations? (necessary)
- Will the company allow rehabilitation? (optional - not required by any Texas or federal law)
Can a company test some, but not all, employees?
It is legal to test some, but not all, employees, but an employer must be careful. The policy should cover all employees in specific job categories. For example, the company could make all workers who operate machinery or vehicles subject to drug testing, but not require testing of clerical staff. Some employers test only those employees whose jobs are inherently risky. Some companies would not even do drug testing were it not for certain laws, such as the DOT drug testing regulations for long-haul truck drivers, oil and gas pipeline workers, and so on. Some contracts specify that workers coming into a client's facility will be subject to drug testing. If that happens, the contractor does not also have to test its other employees who do not go onto that client's premises. The main thing is to decide who will be covered, and then to enforce the policy in an even-handed way.