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Corporate Drug and Alcohol Test Policy: Part One – Drafting

By: Douglas E. Plocki, Esq.

Drafting and using a viable drug and alcohol test policy is often overlooked in the corporate setting.  Professional service providers, sales companies, technology consultants – these may not seem like the traditional corporate entities that use drug and alcohol testing policies.  But they should.  Putting a drug and alcohol testing policy in place does not mean you believe your employees abuse drugs or alcohol, but it can help protect the company if drugs or alcohol become a problem.

  1. Proper drug and alcohol test policies include several key elements:
  2. Definitions of what is considered drugs or alcohol
  3. Clear policy statement regarding use or abuse of drugs or alcohol
  4. Testing procedures; and
  5. A clearly defined disciplinary process.

An effective policy is clear and avoids ambiguities that lead to misinterpretation and can lead to litigation.  A drug and alcohol policy could be used to terminate an employee, so it must be clear, reasonable, and consistent.  It should begin by defining key terms, such as “Alcohol” or “Alcohol use.”  Many policies refer to definitions provided in the relevant state statutes.

The policy statement must educate and draw clear boundaries.  It must tell employees, those who supervise the employees, and potential judges or juries (who may review the policy) which activities are not permitted.  The policy should account for use and/or possession of drugs and alcohol on company property during work hours, but must also account for off-site use that impacts performance or the employee’s ability to represent the company.  A categorical ban will rarely work.  The policy must consider whether alcohol use will ever be permitted in a company-related function – at a reception, for example.  Proper drafting requires thoughtful review of the varied situations where drug or alcohol use may arise, and how those situations may affect your company.

The testing procedures used by your company can range from (a) For-Cause Testing; (b) Random Testing; (c) Post-Accident Testing; (d) Return-to-Duty Testing; or (e) Pre-Employment Testing.  It may be proper to use some or all of these testing options.  Normally testing should be performed by a qualified testing facility.

The disciplinary action section should define the actions the company may and will take if an employee violates the drug and alcohol test policy.  For example, will the company suspend or terminate for a first-offense?  What are the employee’s rights to challenge a positive test result?  Typically a “two-strike” policy, with a test-on-return element balances the employers’ needs and the employees’ rights.  The company should consider its objectives, its employees' rights and obligations, and the nature of the company’s business to strike the proper balance.

Like any policy, careful drafting requires thought.  Draft an effective policy to educate your employees, protect your company, and avoid litigation.

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GarbiaPlocki, LLP is a law firm of dedicated professionals specializing in helping businesses grow. We offer corporate development, governance, and policy planning and implementation services to help companies build for the future, and commercial litigation services to protect that growth. Our lawyers are licensed in Virginia, Maryland and the District of Columbia. We look forward to the opportunity to serve you.