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Are Your Clients Underestimating a Common Liability?

When your employees specifically ask you to implement a random drug testing program, you know there’s a problem. This recently happened to a manufacturing client of ours. Like in many companies, the management team did not think they had a drug problem or that a full testing program delivered a good return on the investment. The employees disagreed.

What does this have to do with lawyers and law firms? Lawyers advising companies and entities are in a unique position to participate in the war against drugs and to assist clients in reducing their liability which clients face due to substance abuse. Twenty five years ago, workplace drug testing was essentially nonexistent.

But in the 1980’s, when rampant drug abuse was discovered in the armed forces, President Reagan issued Executive Order 12564, mandating a drug-free federal workplace. And in 1988, the Mandatory Guidelines for Federal Workplace Drug Testing was published. Because drug-related costs and problems have cost the US more than a trillion dollars over the course of 40 years1, many non-mandated industries are embracing drug testing. Employers carry a significant percentage of that loss.

Clients may think drug and alcohol abuse is not affecting their employees and business, but chances are that it is. According to the National Institute on Drug Abuse (NIDA), nearly 75% of adult illicit drug users and 80% of heavy or binge drinkers are employed.2 About 12 million American teens and adults reported using prescription painkillers for non-medical reasons or to get “high”, costing more than $72.5 billion each year in direct health care costs.3 Substance abuse can be well disguised—often, an employee or candidate is very adept at hiding an addiction.

The impact of substance abuse is amplified in smaller organizations—a small team of ten is affected by substance abuse more profoundly than a corporation of 500. Yet small to mid-sized entities are most likely to lack an official drug free work place policy and drug testing program.

Lawyers are the source of advice and counsel for clients regarding many things, including liability. According to the Model Rules of Professional Conduct, a lawyer shall exercise independent professional judgment and render candid advice in representing a client. It states, “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, which may be relevant to the client’s situation.” (MRPC § 2.1).

Discussing this very real liability with clients comports with an attorney’s obligation to provide an objective and thorough assessment. An attorney’s credibility can dramatically influence his or her clients into taking a new or earnest look at this prevalent problem and reducing their liability. In this matter, denial is dangerous and costly.

Some of the reasons for addressing substance abuse in the workplace are clear:

·         It is mandated by law for several industries.

·         If your client is a government contractor or has employees governed by the Department of Transportation, a substance abuse policy and drug and alcohol testing program is required by federal law.

·         Alcohol and substance abuse cost employers billions of dollars annually in downtime, injury, turnover, and theft.

·         The positive effects on workplace productivity and morale are immeasurable.

·         Safety is a primary reason for many employers implementing a testing program.

·         Many states offer premium discounts on workers’ compensation for companies that implement sound drug free workplace policies and drug and alcohol testing programs.

·         Impaired workers are 3.6 times more likely to have a workplace accident.

·         Employees do not want to work with co-workers who are impaired. It makes their job more difficult and often increases their workload. Drug free employees seek out companies that are drug free and safe.

·         Accidents, injuries, litigation and even just costs arising from employee substance abuse can reach an amount that can impede or even fold a company.

The first step to reducing liability is ensuring your clients have written substance abuse or drug free workplace policies and testing programs which comply with local, state and federal regulations. Clients should be able to answer specific questions related to their substance abuse policies:

·         What is our official policy?

·         Are employees allowed back once they’ve sought treatment and proven sobriety, or do we have zero tolerance?

·         How and when will we conduct tests? Will testing be pre-employment, random, reasonable suspicion, or post-accident?

·         Should an employee have a substance abuse problem, will we have an employee assistance program?

·         What recourse does an employee have if he or she challenges the test results?

·         Does our policy comply with state and federal law and regulations?

The employees from the manufacturing company noted above knew there was a problem and took action. They wanted to create a safe work environment by implementing a random drug testing program. In the employees’ words, they’d rather be subject to tests than potential accidents and injuries.

Substance abuse in the workplace carries a significant liability and is a national problem. Drugs are indiscriminate and are used by people of all walks of life. Suggesting clients address the possibility and liability of substance abuse within their companies is a great service to them.

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Kail Q. Seibert, Esq. has over 35 years’ experience as an employment trial lawyer, business owner and Human Resources executive. She is President and Founder of Ahead of the Kurve, a third-party administrator for employee screening through background checks and drug and alcohol testing programs, training, and HR management. She can be reached at kqs@aheadofthekurve.com or 208.331.5057.

Sources:

1”Wasted Tax Dollars.” Drug Policy Alliance

 http://www.drugpolicy.org/wasted-taxdollars

2”Drug Facts: Workplace Resources.” National Institute on Drug Abuse. http://www.drugabuse.gov/publications/drugfacts/workplace-resources

3 “Saving Lives and Protecting People: Preventing Prescription Painkiller Overdoses.”

Centers for Disease Control and Prevention.

http://www.cdc/gov/injury/about/focus-rx.html

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