Reasons for Implementing Drug Testing Policies
When they do implement drug testing protocols, law firms typically consider the issue from several different perspectives. They may be required to strictly comply with the regulations from the state bar association, and/or they may have certain clients that specifically mandate that all vendors—including their legal counsel—submit to drug testing policies. Additionally, some law firms implement drug testing policies for internal workplace safety and professionalism reasons.
By complying with the drug-testing requirements of clients, law firms can oftentimes increase morale with those clients, and they can also help avoid any potential legal problems down the road in a client relationship if a random drug test on a particular attorney or staff member does not go well. Even in cases where such testing is contractually mandated with a client , some law firms may choose to implement a drug testing policy internally for other reasons such as:
It is also important to note that the legality of drug tests in the workplace will vary based on what state a law firm is located in, and in what state the individual intended to be drug tested is residing. For example, a drug test generally should be performed pursuant to a firm’s pre-existing testing policy rather than simply because an employee or contractor is suddenly acting suspiciously. Disciplinary issues related to use of drugs or alcohol usually are considered to be "private matters," and drug tests aspire to protect firms from liability by ensuring office safety and maintaining professional decorum.
What Types of Drug Testing are Commonly Used
Drug testing methods can vary by state and by the specific policy adopted by the law firm. The most frequent testing method used by law firms is urine testing due to its low cost and accuracy. An employer may use either on-site urine testing or send samples to a commercial laboratory for analysis. On-site urine testing uses a commercially prepared kit that is manufactured as a dipstick or a cup. Once urine is collected, the sample is then dipped into or poured into the cup and the results obtained in seconds. Laboratory analysis generally is conducted using samples that are sent to a laboratory by the employer. While generally more accurate than a dipstick or cup test, lab tests can produce false positive results due to cross-reactivity with legal, over-the-counter medications, including common cold medicines.
Testing of hair follicles is expensive and often not practical for law firms that do not have a drug testing policy. Generally speaking, hair testing for drug use is unable to determine when drug use occurred and is therefore better able to identify whether a longer-term problem exists. The results only indicate that they drug was present at some time in the recent past. The hair sample must be cut very close to the scalp. Since the sample taken is very small, the presence of the substance will not be apparent at the root and will therefore not be affected by hair coloring or other hair treatments.
Saliva testing is a newer type of drug testing that is still in the early stages of being validated for accuracy. Like urine testing, saliva testing has a very low false-positive rate and is a very inexpensive way to get quick results. The samples are obtained from the mouth, usually by a strong cotton pad placed between the front gums and the inside of the lip for one minute. Then, the sample is inserted into a collection tube, which may contain a preservative that prevents contamination by substances that may be in the tester’s mouth.
Legal Issues Regarding Drug Testing at a Law Firm
In addition to contemplating the ethical implications of drug testing law firm employees, employers should consider whether their law firm will be subject to federal laws, Minnesota contraction rights law, client guidelines, and other state employment laws. Employer obligations can include but are not limited to the following.
Federal, state and/or local anti-discrimination laws such as the Americans with Disabilities Act, Minnesota Human Rights Act and the Cannabis Freedom Act may impose limitations on an employer’s ability to carry out workplace drug testing, including testing for the presence of cannabis. Under federal law including the Drug-Free Workplace Act and Drug Free Schools and Communities Act certain employers may be subject to drug-free workplace requirements. Employers who have federal contractors and subcontractors must adhere to the drug-free workplace requirements.
Federal employee protections under the Americans with Disabilities Act may further give rise to a duty to accommodate current and prospective employees who are legal cannabis users. Federal protections DO NOT extend to employees who engage in the illicit recreational use of cannabis. As a result if an employee tests positive for cannabis they can be dismissed regardless of whether the employee engaged in the legal or illegal use of cannabis.
State law provides legal protections for medical cannabis users. Minnesota law protects the right of employees to use medical cannabis. Further, an employer cannot base employment decisions upon the fact that a person is enrolled in the Minnesota Medical Cannabis Program. Employers may not refuse to hire, terminate or otherwise disadvantage a person because the person is enrolled in the Minnesota Medical Cannabis. Minnesota law, however, does not require an employer to accommodate an employee’s use of medical cannabis in the workplace. Other state employment laws impose other restrictions. For example, under the Minnesota Drug and Alcohol Testing Policy Act, employers must provide written notice of drug and alcohol testing policies to both employees and job applicants prior to testing.
Employers should consider having clear and consistent written drug testing policies and practices applied to all employees fairly and equitably in both the private and unionized workplaces. Where an employer has written policies, they should be followed and uniformly applied to all employees. All employees, both new and current, should receive copies of the policy so that their moral compasses are informed by the firm’s expectations. It is important to notify employees of any changes to the policy. Policies should stress that appropriate disciplinary action will be taken towards employees who test positive, impair productivity, or otherwise violate the policy. Finally, it is important to note that even if a policy is in place, employers must still comply with their obligation to engage in the interactive processes with employees who request reasonable accommodations under the ADA or Human Rights Act.
How Often Should a Law Firm Conduct a Drug Test?
In most circumstances, law firms will utilize drug tests in four areas: pre-employment, random, post-accident, and routine. While universally adopted best practices do not exist for any of these four areas, firms will often strongly recommend testing in each of these areas.
Pre-employment tests are typically conducted at the point a firm (or vendor acting on behalf of a firm) is interested in making a formal offer of employment to a candidate. This test should be done after the interview process and before a firm conducts a background check. With today’s technology, immediate test results may be obtained through an on-site test. The results of that test, however, should always be confirmed by a laboratory analysis. If a candidate fails this pre-employment test, there are generally two types of action that an employer may take. First, a firm should consider whether that candidate has in fact satisfied all of the conditions of an employment offer. It is not uncommon that an offer of employment is made by a firm on a "contingent" basis. For example, an offer may be made subject to a successful background check and/or a successful drug test. In such a circumstance, an employer can choose to only rely on the results of the background check and terminate the offer based upon the failure of the drug test. Alternatively, an employer may also choose to withdraw the offer of employment entirely if the candidate fails the drug test. These generally would not be considered "adverse actions" under the regulations governing drug testing in the workplace however, the EEOC may attempt to argue otherwise. A firm may find it useful to speak with legal counsel to consider best practices in this area. As referenced above, non-safety sensitive employees may also be tested at random intervals. Generally speaking , an employer should provide at least some notice prior to the test, as it may otherwise be difficult to have a random test be accepted as valid if the employees were provided prior notice, for example, on a weekly basis. Random tests are often conducted in conjunction with other types of testing as well, such as at exit interview or at post-accident testing. Although employers have some discretion as to what is considered "random", most employers will agree that an effective "random" drug testing program is one where each employee that may be subject to testing has an equal opportunity (i.e. all employees are equally representable in a random sampling universe). This means that all employees are equally subject to random selection. It is often preferable to conduct random drug tests during the work week rather than on a Monday or a Friday. Post-accident testing is usually only authorized in circumstances where there are injuries to employees or others. In particular, there must be evidence that a drug related incident has occurred. Drug testing should almost always occur within the first 24 hours following the incident. Employee cooperation can be encouraged by explaining to the employee that the firm has a duty to protect employees and customers, and that this can be part of that effort. Again, as set forth below, an employer can be in violation of the law if it terminates or takes other adverse action against an employee based on the result of a marijuana drug test. Rather, all employers that may utilize marijuana testing should train their supervisors that post-accident tests should be conducted in accordance with the firm’s established policies and procedures and that they must wait for the test results before taking any type of adverse action against the employee.
Drug Testing Issues and Controversies
As to any controversy, it is that drug testing and workplace privacy rights are increasingly at odds. Employers may conduct random drug tests of employees on the grounds of ensuring a safe work environment, maintaining employee productivity, and eliminating substance abuse. Of course, the law controls this right – especially in an age where changes in law have legalized and decriminalized the use of marijuana and/or cannabis products for medicinal and/or recreational purposes.
Among the affirmative duties, employers may be required to afford an employee either reasonable notice or "reasonable suspicion" prior to any random test. Determining the reasonableness of given circumstances is fact dependent. In Clark v. Tarrant County, the federal Fifth Circuit Court of Appeals held that mere statements of another employee regarding drug use is sufficient to constitute "reasonable suspicion" and justify an administrative search of an employee’s vehicle where that employee had just been ticketed for a drug related offense. Likewise, the Court held that a random search of an employee’s office could be justified where an employee was actively providing methadone to other employees, in violation of drug policies. Ennis v. McCrane, 317 Fed. Appx. 372 (5th Cir. 2008). In Harris v. Drax Biomass, Inc., the United States District Court, Middle District Alabama, held that the fact that the plaintiff had taken a prescription drug prohibited by company policy was "reasonable suspicion" of drug use. Harris v. Drax Biomass, Inc., 2016 U.S. Dist. LEXIS 32449 (M.D. Alabama, March 15, 2016). Some courts, such as Evers v. Egg Harbor City, (D.N.J. March 7, 2019) have held that evidence of trespass into a confidential area, though not indicated by concrete evidence, is sufficient to establish "reasonable suspicion". Evers also noted that the United States Supreme Court has found that "drug testing by an employer can serve a legitimate business purpose or accommodate a compelling need." The Court in Evers also held that after acquisition of the test information, employee’s privacy interests are infringed only if the information is disclosed to others. Two United States Circuit Courts, Sixth and Tenth, have held that testing information is confidential. Thus, an employer must keep the information "confidential" from unauthorized personnel within the company.
Issues as to the accuracy of drug testing results are increasingly common. Federal law requires testing laboratories to satisfy contracted requirements for laboratory quality assurance, control, and effectiveness. Drug testing laboratories must certify and register with the Department of Health and Human Services (HHS) as a Drug Testing Laboratory before they conduct sensitive drug and alcohol testing. Laboratories must also conduct tests in accordance with the Mandatory Guidelines for Federal Workplace Drug Testing Programs (61 Federal Regulations 32658-32690).
The Effects of a positive drug test are that the employee may face termination or other disciplinary action based upon the firm’s policy. However, employers should follow all requirements of the firm’s policy as to records retention and rehabilitation or assistance programs. Failure to follow mandated policy can lead to liability. For instance, in Gibbons v. Hunn, 2017 U.S. Dist. LEXIS 201545 (D.N.J. December 7, 2017), the Court denied summary judgment to an employer where an employee failed a random drug test, claimed her absence was for a Company sanctioned rehab program, and fired her for failure of a random drug test.
Alternatives to Preventing Risks
Aside from the obvious oversight of a zero tolerance policy, drug testing in law firms can be sometimes viewed as an invasion of privacy. So what are some other ways that law firms can ensure safety and professionalism without the use of drug tests? One approach frequently used by employers in recent years is the establishment of wellness programs, which embrace the concept that addiction is a disease requiring treatment, not punishment. These programs may provide a range of services, from support to substance abusers (whether employees or – equally important to assist – family members of employees), to educational programs about the risks of alcohol and drug addiction. Employees who enter rehabilitation for drug and alcohol problems are also assisted by these programs, which offer assistance in transitioning back to work after rehab. Training is another key alternative strategy. By providing training to employees , law firms can send a clear signal that illegal drug use will not be tolerated in the workplace. Law firm facilities can be designed as a sober haven from a culture of overindulgence, and employment policies adopted that explicitly prohibit drug use. Confidential EAP counseling services can be a vital support for concerned partners and staff who observe aberrant behavior by employees in the law firm. Of course, the most important safety measure in a law firm is the adherence to ethical rules, which require lawyers to conduct themselves with honesty and integrity, and for which a lapse can lead to a serious disciplinary violation. That said, the vast majority of attorneys manage their obligations well throughout their career, with only those in extremely difficult situations needing support and assistance from the firm.