Companies who are regulated by Dept. of Transportation (DOT) regulations have clear guidelines on what their company’s drug and alcohol policy must include and the reasons they may test employees for drugs and alcohol. On the other hand, companies that are not regulated by DOT regulations have no comparable guidelines on which to base their drug and alcohol policy. Instead, non-regulated companies must navigate the intricacies of state laws and regulations. Some states favor employees by placing restrictions on drug and alcohol testing; some states favor employers by giving wide authorization for testing; and some states have no regulations at all.
In our experience the most common reasons non-regulated companies test employees are random, reasonable suspicion, and post-accident. Reasonable suspicion is one of the most common reasons to test, and is more readily defendable because the employee has already agreed to abide by the company’s written policies regarding drug and alcohol use on the job (assuming the company has a drug and alcohol policy!) and has implicitly given consent to the test by accepting employment.
In order to implement a sound reasonable suspicion testing policy supervisors should be trained to recognize the signs and symptoms of drug and alcohol use and how to document their observations that cause suspicion of drug and/or alcohol use. A sound training program and solid documentation of the “suspicious” behavior avoids the perception that supervisors and managers are randomly or selectively testing employees without justification.
Random testing is the more problematic type of testing to implement and defend. The objections to random testing are based primarily on the issue of invasion of privacy. Some states place restrictions on random testing of employees for that reason. In states that specifically allow or have no laws regarding random testing, random testing is most readily defendable if the employee performs a “safety-sensitive” job – the benefits of testing in this situation outweigh the privacy concerns. A safety-sensitive job is defined as one where an employee’s impairment may endanger the employee, other employees, or the public (for example, heavy machine operator, fork lift driver).
Some companies have a policy that all employees are subject to random testing. This removes “disparate treatment” complaints from the equation. However, it does not remove the “privacy” objection.
One of the most up to date sources of state drug testing laws is at statedrugtestinglaws.com. For a brief summary of state laws see this source from the ACLU, https://www.aclu.org/files/FilesPDFs/testing_chart.pdf