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Drug Use is on the Rise: Is Your Organization’s Drug Testing Policy Up to Snuff?

We hear in the news of heroin addiction and drug-related deaths rising. This has reached epidemic levels in certain communities across the country. What you may not realize is that Arizona is not immune from this problem. In fact, Governor Ducey created the Arizona Substance Abuse Task Force to help address these issues. Every year, the Arizona Department of Health Services publishes mortality statistics, including those due to drug abuse. You can find them here. From 2012 through 2015, heroin related deaths in Arizona rose 167%. So, what are employers to do? I think it is imperative for employers to have drug testing policies and support systems in place to help their employees who are impacted by drug addiction.

In the age of legalizing recreational marijuana, medical marijuana usage, and rising drug related deaths, employers may question the necessity of drug testing. However, with drug usage rising employers need to ensure that they provide a safe and productive work environment. In Arizona, there are drug testing statutes that provide liability protections to employers if followed (A.R.S. §23-493, et seq.). First and foremost, an employer must have a written policy that includes the following:

  • A statement of the employer’s policy regarding drug and alcohol use by employees;

  • A description of employees or prospective employees that are subject to testing;

  • The circumstances under which testing may be required;

  • The substances as to which testing may be required;

  • A description of the testing methods and collection procedures to be used;

  • The consequences of a refusal to participate in the testing;

  • Any adverse employment action that may be taken based on the testing procedure or results;

  • The right of an employee, on request, to obtain the written test results;

  • The right of an employee, on request, to explain in a confidential setting, a positive test result; and

  • A statement of the employer’s policy regarding the confidentiality of the test results.

Arizona law permits employers to drug test in the following circumstances, but these must be contained in the written policy:

  • Pre-employment

  • Reasonable suspicion

  • Post-accident

  • On a random basis

  • For purpose of maintaining safety and productivity, quality of products or services, or security of property or information

In addition, if an employer institutes a drug testing policy then all compensated employees, including officers, directors, and supervisors, shall be uniformly included in the testing policy.

Arizona’s drug testing law includes further requirements on how the testing is to be conducted. Drug or alcohol testing of employees is to occur during, or immediately before or after, a regular work period. The testing by an employer shall be deemed work time for the purposes of compensation and benefits. In addition, employers are required to pay all actual costs of testing of employees and may, at its discretion, pay for the actual costs of testing of prospective employees. Employers are required to pay for transportation costs for employees if the testing takes place at a location other than the employee’s normal work site.

In addition, the law outlines specific drug testing procedures. For instance, the collection of samples shall be performed under reasonable and sanitary conditions. Sample collections must be documented and documentation procedures must include the following:

  • Labeling of samples in order to preclude the possibility of misidentification of the person tested; and

  • An opportunity for the person tested to provide information relevant to the test, such as use of prescription or nonprescription drugs.

As you can image, sample collection, storage and transportation is to be performed in a manner reasonably designed to preclude the possibility of sample contamination, adulteration or misidentification. Testing is to comply with scientifically accepted analytical methods and procedures. It is to be conducted at a laboratory approved or certified by the US department of health and human services, the college of American pathologists or the Department of Health Services. Finally, if an employee tests positive then there must be a confirmatory test that is done using a different chemical process then the initial drug screen. The confirmatory test shall be a chromatographic technique such as gas chromatography-mass spectrometry.

Finally, based on Arizona’s drug testing law, if an employee tests positive, violates the policy, or refuses to participate in testing then an employer can take adverse employment action or require rehabilitative actions. In the case of a prospective employee, the employer can refuse to hire the individual.

While it is important for employers to have a mechanism in place to drug test employees, employers also need to have a support structure in place to help employees that are impacted by drug addiction. This can be by providing drug treatment and counseling as part of their medical insurance or by having resources available to assist those impacted. Employers can find resources through the Arizona Substance Abuse Task Force.

Employers cannot ignore the rising use of drugs, including marijuana (medical or otherwise), and the impact this has on their work force and productivity. I strongly recommend that employers take this opportunity to review their policies and practices.

The picture I have chosen for this week’s post is from a hike we did on the North Rim in November 2016. We were hiking the Tuckup trail on our way to see the Shaman’s Gallery. It was a gorgeous day with beautiful scenery.