Legal Series - For Cause Drug Testing

Question – my department wants to start random drug testing. Many of the members have refused and have been threatened with termination. Our Union indicates it is a good idea, but cannot articulate why. Can you help?

Response – drug testing in the fire services has created one of the greatest controversies in our industry. With the emergence of recreational use of marijuana in Washington State and Colorado, it compounds an almost impossible job for the department to manage and control their employees conduct both on or off the job. Many individuals feel the imposition of a drug free workplace is a violation of their constitutional protections, to include protection against illegal search and seizure under the 4th Amendment; employers must be taking the time to create the right policy for the right reason.

The reality for most employers is that the use of drugs and alcohol, on or off the job creates many workplace safety issues and certainly a liability when one of your firefighters is involved in a vehicle accident and your driver is under the influence. It also leads to a monetary loss when those employees with a substance abuse miss work, are in the hospital more, you have to pay overtime to cover those absent employees and probably higher medical premiums for your employees health. It is estimated that substance abuse costs employers across the working spectrum about $100 billion a year in costs.

The U.S. Supreme Court in the late 1980’s approved employer drug and alcohol testing for applicants and employees under special circumstances. In addition, other Federal legislation to include the Drug Free Workplace Act of 1988 requires many federal contractors to develop policies and maintain a drug free workplace. Testing is mandatory for the transportation industry (think DOT/CDL drivers), train engineers, airline crews and in many workplace environments, injured workers must be tested based on OSHA or workplace practices.

In the fire service, due to the nature of the work and the safety concerns during training, active fire, rescue and EMS activities are fraught with deadly dangers. An impaired provider not only endangers themselves, but other firefighters, EMT’s and the general public.

Many a good drug policy (see Substance Abuse policy found in the Policy Bank) at http://www.fireengineering.com/content/dam/fe/online-articles/docum... can provide the employer and the Union a solid foundation in ensuring the rights of your employees are protected as are other employees and the general public.

Does the employer have the right to test? The lawyers answer is it depends on the respective states legislation concerning such matters. In general, however, the State provides broad rights to employers to enact and enforce polices such as a Drug Free Workplace Policy; a Zero Tolerance Police; Post Accident Testing and For Cause testing based on certain standards due to reasonable standards and observations made by supervisors or other firefighters. The respective laws related to drug and alcohol testing include an employers’ right to test, the creation and communication of policies, the collection and custody of samples, laboratory licensing and procedures, the consequences of positive results, confidentiality of results, and the enforcement of rights and obligations.

Employers must understand these Polices must not be used for punitive purposes and there are ridged protocols to follow include a review by a qualified physician also known as the Medical Review Officer.

The fire service employer must periodically review their drug policies. As noted earlier in this article. With the advent of the recreational use of marijuana and marijuana used for more medical therapies, what would the employer do, if a firefighter tests positive for marijuana but is not impaired? Volunteer firefighters are also included in these policies as well as over 75% of our nations fire services are provided by volunteers.

A great policy will protect your employees, the general public and minimize your liabilities if there is an incident or accident at the workplace or at the scene of an event.