This story really happened, as cheeky as it might sound.
Greg is a small-business owner and has had a flourishing business that he started up several years ago. The staff is welcoming and educated, they have all passed a variety of background checks before being hired, and there are no complaints from the large customer base. Maybe even more importantly, business has steadily grown every quarter.
Everyone is happy. The owner is seeing good profit, the employees are getting their yearly raises and bonuses, and the customers are receiving great service and a good price. This was how Greg saw it, too.
So, one Saturday on this day off, Greg came into the store to work on checking off the back-stock, from the night before. It was here Greg smells a waft of smoke come from the employee lounge bathroom. It’s unoccupied so he checks it out to confirm the smell of marijuana.
At first he denies the thought of his employees being drug users. Could it be incense or someone’s cigarettes? Business has been so good that he had give his employees the leeway to do what they wanted with their break space, so long as they kept it clean.
Maybe that was a mistake? He gives his employees a quick check, asks how they are doing and tries to smell them without looking awkward. Everyone checks out.
So Greg lets it go. A few weeks later he thinks to come in unannounced, again, and see if his employees are behaving or at worse, burning cannabis smelling incense in the break room. Again, he finds the same smell in the bathroom, but nothing on the employees.
He takes it a little more serious this time. The employees hadn’t complained about raises or bonuses, they had been great staff and were continually growing as a unit, but there was something bothering him about the fact one or more of his employees might be doing drugs, no matter how good they were doing on the sales floor.
Can Greg, without much probable cause, make his employees submit to a drug test?
Drug testing in the workplace
Drug use can jeopardize the safety of the workplace (you wouldn’t want people driving the bus to be able to do drugs before their shift), the quality of the job being done (just think of a carpenter trying to build kitchen cabinets under the influence of something), and the overall productivity of a business (even if Greg’s business wasn’t suffering, that doesn’t mean another business won’t).
There are a myriad of reasons why drug testing should be done, but the question is whether or not it can be done by law?
What is the law on drug testing?
State and Federal Law will dictate the definition of banned substances and it is up to the business owner to apply policy upon those parameters.
To find the answer for your state, see http://www.testcountry.com/StateLaws/.
In Greg’s case, he was located in Minnesota. There the logistics of who can be drug tested are outlined as:
- Covered employers – Public or private business (this list can include, but is not limited to public private schools, government positions in other states).
- If applicant testing is authorized and outlined by contract—meaning if the employer is restricted from performing drug testing under specific conditions. In Minnesota, ”Applicant testing authorized, pursuant to employer’s written policy and with advance notification of applicant, only after offer of employment has been made and only if all candidates for job are tested.”
- If Drug testing for Current employees is authorized—Yes if:
- There was an accident
- Reasonable suspicion of drug abuse
- As part of an assistance program
- or part of an annual exam *if two weeks notice is given
Random testing—Yes if
- The position is safety related
- The position is qualified by a collective bargaining agreement for athletes
Conditions of test
- Must be done by certified lab
- With documents showing a chain of custody
The site goes on to explain a further break down of the bullet points.
Greg can test his employees, as a small business owner, if it was included in the policy when he or she was hired, given his reasonable susipicion of drug abuse, so long as he has the tests run by a certified lab showing proper documentation.
So what was in the employee contract?
Unfortunately, Greg didn’t have a written policy that he could make his employees adhere to. Without some kind of signed set of guidelines, he didn’t have much leverage to stand on when the employees denied taking a urine analysis.
What he should have outlined in his written and signed policy is:
- What will be considered a violation? Defining alcohol related offenses as well as drug related offenses
- Which employees will be covered? Is this for his managers, incoming employees, all employees, himself?
- What disciplinary measures will result from violations? This needs to be black and white. If you get caught doing this, these are the steps that will be followed.
- Will the company allow rehabilitation? (required by Minnesota and federal law) It is unlawful to fire or terminate someone without the option of rehabilitation.
What should Greg do?
In the end, if he had his end covered by including such a clause in the employee contract, and the state his small business is located in has no restrictions on UI’s, then Greg could do whatever he would have wanted, so long as he didn’t qualify the test as a random. The real story ended with him (obviously) not testing his employees, but during a monthly meaning making an amendment to his policy that they could choose to sign, which included a new drug testing policy. Everyone signed, and so far he hasn’t smelled anything funny coming from the bathroom.
A real question might be if Greg really did ‘want’ to drug test his employees?
Would it bother you if you were in Greg’s shoes?
The business is thriving, there are no complaints, and everything seems perfect. Would you want to train and educate another body of employees who may not be quite as successful?
The answer for many people might be determined by the drug being used and when. Would it be so harmful if the employee was a chemotherapy patient taking a pain killer or medicinal marijuana after work but never on the clock? If Greg had been located in California or Colorado where a permit allows the holder to use certain drugs for medical purposes, but not during times of work or responsibility, the situation would cloud up even further.
But the point remains; dependent on where the business is located, there will be state and federal restrictions that must be adhered to, and in almost every case, documentation is almost always required. If the state allows it, a realistic and appropriately written policy would benefit any employee contract regarding drug testing, what is considered realistic and appropriately written is up to you.