Maintaining a Drug-Free Workplace in 2016

According to the Substance Abuse and Mental Health Services Administration (SAMHSA), illegal drug use is on the rise. A national survey found a large increase in illicit drug users between 2013 and 2014. 27 million Americans aged 12 or older, a number that is surely still on the rise, identified themselves as illicit drug users last year. This number translates to about 1 in 10 Americans. This high number continues to be driven by marijuana use (22.2 million users) and the abuse of prescription drugs (4.3 million users). 

The near 13% increase in illicit drug use in the span of a year can be mainly contributed to the legalization of marijuana use in Washington and Colorado. From 2012 to 2013, positive tests for marijuana increased 6.2 percent nationally. Positive drug test results for Colorado and Washington increased by 20 percent and 23 percent respectively. As a reminder to companies in either one of these states, the legalization of marijuana does not currently prohibit employers from testing for the substance.

The staggering numbers may have you believing that the numbers are skewed. You may think that surely a large proportion of illicit drug users are unemployed. However, of the more than 22 million illicit drug users aged 18 or older, just over 70 percent were employed either full or part time. That means your company may be susceptible to a loss caused by a workplace accident or lowered productivity.

Drug Abuse on the job can impact your company in the following ways:

• Erratic work quality

• Lack of focus

• Lowered productivity 

• Increased absenteeism

• Unexplained disappearances from the job site

• Carelessness, resulting in errors

• Needless risk taking

• Disregard for safety, therefore increasing accidents

• Extended breaks and/or early departures

• Automobile accidents 

What can I do to maintain a drug-free workplace?

Review your company’s drug testing policy. As an employer, you need to both understand the purpose of the substance abuse testing program and effectively communicate the policy to candidates and employees prior to the program start date. With medical marijuana legal in 23 states and recreational marijuana legal in 4 states, look over the section that addresses the use of marijuana. Make sure you have clarified your company’s stance on safety, marijuana use, and potential ramifications for violations of your company’s policy.

Continue or increase drug testing. There are many reasons for issuing a drug test. Many companies engage in pre-employment drug testing, hoping to deter users from applying for positions. Random drug testing is an option that promotes workplace safety and more effectively deters workplace drug use. Post-accident/reasonable suspicion testing also communicates a company’s stance on workplace safety. This method provides cause for termination and reduces workers compensation exposure. Return to duty/follow-up testing reduces risk while allowing trained employees to return to work. This method also deters relapse. 

It might be time that you review your drug screening policy for the new year.

Sources include:

SAMHSA National Survey on Drug Use and Health

NAPBS

Current Consulting Group LLC

Guidance Issued for New York City Fair Chance Act

In our last blog, we talked about New York City’s Fair Chance Act (FCA), a law passed last month that requires a conditional offer to be extended to the applicant before conducting a background check. Earlier this month, to help New York employers understand the new law, the New York City Commission on Human Rights released an enforcement guide as well as a revised FCA Notice evaluation form. The revised version appears to be a result of concerns that arose upon the release of the original notice form. The FCA Notice Form is intended to be provided with the pre-adverse-action notice to justify the denial of employment based on the analysis of NY Correction Law Article 23-A factors.

The guidance breaks down violations of the FCA as such:

1. Declaring, printing, or circulating – or causing the declaration, printing, or circulation of – any solicitation, advertisement, or publication for employment that states any limitation or specification regarding criminal history, even if no adverse action follows. This includes, without limitation, advertisements and employment applications containing phrases such as: “no felonies,” “background check required,” and “must have clean record.”

 2. Making any statement or inquiry, as defined in Section II of this Guidance, before a conditional offer of employment, even if no adverse action follows.

3. Withdrawing a conditional offer of employment based on an applicant’s criminal history before completing the Fair Chance Process as outlined in Section V of this Guidance. Each of the following is a separate, chargeable violation of the New York City Human Right Law (NYCHRL):

a) Failing to disclose to the applicant a written copy of any inquiry an employer conducted into the applicant’s criminal history;

b) Failing to share with the applicant a written copy of the employer’s Article 23-A analysis;

c) Failing to hold the prospective position open for at least three business days, from an applicant’s receipt of both the inquiry and analysis, to allow the applicant to respond.

4. Taking an adverse employment action because of an applicant’s non-conviction.

Penalties for violations will be based on the following factors, among others:

1.       The severity of the violation

2.       The existence of additional previous or contemporaneous violations

3.       The employer’s size, considering both the total number of employees and its revenue

4.       Whether or not the employer knew or should have known about the Fair Chance Act

In summary, the FCA does not allow an employers’ application or print of any kind to mention background checks or the requirement of a clean record to obtain employment. Employers may not inquire about one’s criminal history before a conditional offer of employment. If an employer is taking adverse action they must use disclosure and authorization forms, must provide a written copy of theArticle 23-A analysis AKA the FCA Notice, and must allow three business days for the applicant to dispute the findings of the background check. Lastly, employers cannot deny employment based upon any arrests that did not lead to a conviction.

The entire interpretive guide can be found here.

The new Fair Chance Act Notice can be found here.