As we see evolution of local and state laws on medicinal and recreational marijuana (and potentially mushrooms in Colorado), we need to ensure our drug and alcohol testing policies are up-to-date and legal.  A nationwide policy on drug and alcohol testing will not suffice, as states continue to change legislation.  We also need to ensure the Americans with Disability Act language is included in the policy and we enforce consistently.

Below are six definitions to consider in the drug and alcohol testing policy:

  1. Employee Assistance Program: If your organization offers employee assistance, we should carve out language regarding the assistance that is provided to the workforce, with location, contact person and phone number. The EAP information should be communicated regularly and through multiple channels of communication.
  2. Preemployment Testing: This is common language to include in a drug testing policy or offer letter. “Applicants being considered for hire must pass a drug test before beginning work or receiving an offer of employment. Refusal to submit to testing will result in disqualification of further employment consideration.”[i]
  3. Reasonable Suspicion Testing: Often included in policies throughout many of our workplaces. “Employees are subject to testing based on (but not limited to) observations by at least two members of management of apparent workplace use, possession or impairment. HR, the plant manager or the director of operations should be consulted before sending an employee for testing. Management must use the Reasonable Suspicion Observation Checklist to document specific observations and behaviors that create a reasonable suspicion that an employee is under the influence of illegal drugs or alcohol. Examples include:
  • Odors (smell of alcohol, body odor or urine).
  • Movements (unsteady, fidgety, dizzy).
  • Eyes (dilated, constricted or watery eyes, or involuntary eye movements).
  • Face (flushed, sweating, confused or blank look).
  • Speech (slurred, slow, distracted mid-thought, inability to verbalize thoughts).
  • Emotions (argumentative, agitated, irritable, drowsy).
  • Actions (yawning, twitching).
  • Inactions (sleeping, unconscious, no reaction to questions).”[ii]

This is not be an all-inclusive list and should be tailored to the needs of your organization.

  1. Post-Accident Testing: If your employees are operating equipment or driving workplace vehicles, this is language that should be included in your organizations policy. In some organizations post-accident testing is common after any accident in the workplace, it does not have to be an industrial organization.  Determine with your insurance agency and workers compensation company which post-accident testing should be in the policy.
  2. Random Drug Testing: In the past we have used external organizations to draw a percentage of names monthly for drug, alcohol and drug and alcohol testing. You can also program Excel spreadsheets to randomly choose people for random testing, based on employee numbers.  This should be done consistently monthly, semimonthly, semiannually or annually.  The policy should be communicated to employees.
  3. Return to Work Testing: Remember the ADA in this situation and state regulations prior to implementing return to work testing. I have used this process in past organizations when someone has admitted to testing positive prior to a random drug test.  We utilized a 12-month random drug testing last chance agreement.

Every organization will have differing requirements for drug and alcohol testing.  If your organization is DOT regulated, ensure you are following state and federal DOT requirements. The rules are complex and have changed recently.  Ensure your organization defines what happens if an employee does test positive for drugs, alcohol or both.  Consider adding language in regarding selling or purchasing drugs on company property.  Review the policy annually, communicate any changes to the workforce, publish the policy and obtain signatures from all employees.  If an employee is on a last chance agreement, review the policy again and obtain a signature.  In some circumstances preemployment drug and alcohol testing can lower workers compensation rates, I have seen this with manufacturing companies.  Confirm with your comp provider to see if this is an option.

DOL Adjusted Penalties for FLSA, FMLA and OSH Act Violations


  • The maximum penalty for repeated and willful violations of the FLSA’s minimum wage and overtime provisions increases from $1,964 to $2,014.


  • The maximum penalty increases from $169 to $173.

OSH Act:

  • The maximum penalty for serious, other-than-serious, and posting violations increases from $12,934 to $13,260for each violation.
  • The maximum penalty for failure to abate violations increases from $12,934 to $13,260per day.
  • The minimum and maximum penalties for willful violations increase from $9,239 to $9,472 and from $129,336 to $132,598, respectively.
  • The maximum penalty for repeated violations also increases from $129,336to $132,598.”[iii]

Recent EEOC Settlements:

“Memphis gas station operator, Flash Market, to pay $100k to settle an EEOC lawsuit. The company permitted a sexually hostile work environment, then fired a female cashier when she complained, EEOC charged. 

Buffalo Wild Wings (R Wings R Wild) to pay $30k to three male job applicants to settle an EEOC sex discrimination lawsuit. The applicants were denied bartender positions in Arkansas and Oklahoma-area restaurants due to their gender, the lawsuit charged. 

Atlantic Capes Fisheries & BJ’s Service Co. to pay $675k to settle EEOC charges of egregious and pervasive sex harassment in the workplace. The lawsuit also alleges that the company retaliated by firing two employees who reported the harassment to EEOC.”[iv] 

– Matthew Burr, HR Consultant

[i] SHRM Draft Policy

[ii] SHRM Draft Policy


[iv] EEOC Twitter Feed, February 5, 2019

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