Drug-Free Workplace Can Yield Benefits For Company, Staff

(Originally published in The Business Journal)

The Bureau of Labor Statistics recently estimated that, on average, 15 to 17 percent of a United States company’s workforce abuses alcohol or other drugs.  

In your business, abuse can manifest itself as inconsistent work quality, mistakes, needless risk taking, lowered productivity and diminished profits.  

Drug and alcohol abuse can also lead to lawsuits by third parties injured by your employees, a costly expense for a business of any size.  The formulation, implementation and execution of a drug free workplace (DFWP) policy can help curb these costs and even save your business in its workers’ compensation premiums.

Federal and state agencies regulate some industries regarding issues of drugs and alcohol abuse.  These include airlines, railroads and other heavily regulated industries.

Most businesses, however, must take a unilateral approach to DFWP policies.  Properly conceived policies will have common key components including written policies, supervisor training, employee education, employee assistance and drug/alcohol testing. 

            Your written policy should contain some critical features. A non-exhaustive list of these includes:

            (1) A clear statement why you are implementing the policy; 

            (2) A clear identification of what employees are subject to your DFWP policy;

            (3) A clear outline of the consequences for policy violations;

            (4) A description of the confidentiality features of your policy;

            (5) Identification of which substances are forbidden by the policy;

            (6) A precise description of all testing practices and procedures;

            (7) A description of the training opportunities for your employees; 

            (8) Identification of your DFWP program administrator;

            (9) A description of the assistance available to your employees with substance abuse problems; and

            (10) The consequences for failing (or refusing to take) a drug/alcohol test.

Fortunately, you need not be alone in drafting and implementing your DFWP policy.  The Ohio Bureau of Workers’ Compensation (Ohio BWC) offers guidance (for more information, visit www.ohiobwc.com). 

Generally, the Ohio BWC program provides a system that, if followed, helps to make certain that your business will not run afoul of applicable state and federal laws.  Using the Ohio BWC system also will help defend against any claims of wrongful termination or other action taken against the employee.    

The bureau has enacted an incentive program designed to help employers establish a safer workplace.  In addition to saving you valuable workers’ compensation premium dollars, the state program encourages employers to detect and deter substance abuse and to take the appropriate corrective action.  

The Ohio program is voluntary for most employers. For businesses with 25 or fewer employees, the Ohio BWC offers the “Drug-Free EZ” program, which features reduced hours for employee and supervisor training, as well as relaxed paperwork requirements. 

For larger employers, the Ohio BWC has a three-tier DFWP program, with employer responsibilities increasing at each level, along with the savings in workers’ compensation premiums.

Employers should not enact a DFWP policy without careful consideration and adequate planning.

Drug and alcohol issues exist at the confluence of state and federal employment law governing disability discrimination and other aspects of the employment relationship.  Therefore, if an employee voluntarily comes to you and announces his or her problem with substance abuse, your first instinct should not be to terminate him or her.  

Rather, you should consult your attorney to address the issue to make certain that you do not violate applicable discrimination law. You must be cognizant of these issues prior to the implementation of a DFWP policy. Additionally, if you are subject to a collective bargaining relationship or unique governmental regulation, you may be limited in your ability to enact a DFWP program.

Working with your lawyer, workers’ compensation administrator, supervisors and employees, you will be able to curb the risks associated with substance abuse while lowering your workers’ compensation premiums. 

Gurbach can be reached at mgurbach@hhmlaw.com or at (330) 744-1111