By Chris Kilbourne
April is Alcohol Awareness Month and an opportunity to review the risks for your workers and your business. For many employers the place to start controlling risks is with a drug-free workplace program.
The Drug-Free Workplace Act is a federal law that requires federal contractors or grantees to have and distribute a written policy explaining the rules related to drugs. It also requires a drug awareness program.
If you’re not covered under the Drug-Free Workplace Act (or a state law mandating such a program), you have more freedom when creating drug-free workplace programs. There is no one “right” way to implement a drug-free workplace. Your program should be designed to meet the particular needs of its workplace.
Issues to consider when drafting a workplace plan include:
Employee education. An employee education program will be most effective if it does not sound like a “top down” mandate from management. It should involve upper- and lower-level management as well as employees.
Supervisor training. Supervisors can play a key role in an effective drug-free workplace program. Supervisors, more than anyone else in the organization, are in a better position to recognize changes in an employee’s behavior or job performance. Remember that supervisors are not expected to provide substance abuse counseling; neither are they responsible for diagnosing nor should they try to diagnose alcohol- or drug-related problems.
Employee Assistance Plans (EAPs). EAPs are one of the most effective ways to deal with alcohol- and drug-related problems in the workplace. They are usually multifaceted programs designed to assist employees with personal problems that affect their job performance.
Drug and alcohol testing. Testing is one very important way an employer can protect the workplace from the negative effects of alcohol and other drug abuse. A drug testing program can deter employees from coming to work unfit for duty and discourage other substance abusers from joining the organization. We’ll talk about testing in tomorrow’s Advisor.
Other Federal Laws That May Apply
The federal Family and Medical Leave Act (FMLA) affects drug-free workplace programs. Under FMLA a covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period when the employee is unable to work because of a serious health condition. A serious health condition includes:
- Any period of incapacity or treatment connected to inpatient care such as substance abuse treatment; or
- Continuing treatment by a healthcare provider, which includes any period of incapacity (i.e., inability to work) due to a health condition lasting more than 3 consecutive days (including treatment thereof, or recovery from) and any subsequent treatment or period of incapacity relating to the same condition.
Note that the subsequent treatment or period of incapacity relating to the same condition must also involve either treatment by a healthcare provider two or more times within 30 days of the first day of incapacity, or treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider. The requirement for treatment by a healthcare provider means an in-person visit to that healthcare provider. The first (or only) in-person treatment visit must take place within 7 days of the first day of incapacity.
The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule creates national standards to protect individuals’ medical records and other personal health information. While the Privacy Rules do not regulate employers as such, it does regulate them in their role as sponsors of group health plans, as health insurers or HMOs, and as healthcare providers.
The HIPAA Privacy Rule provides that in general a covered entity may not use or disclose an individual’s protected health information (PHI) without specific authorization except for treatment, payment, or healthcare operations. There is a limited exemption from the HIPAA authorization requirement that covers disclosures by a provider to an employer of the findings of preemployment physicals, drug tests, and fitness-for-duty exams. Most preemployment physicals, drug tests, and fitness-for-duty exams will not meet the exemption’s requirements. However, not all testing facilities are considered covered entities under the HIPAA rules. Testing facilities that do not meet this definition are not bound by the requirements of the HIPAA Privacy Rules.
One other issue to consider: In some states, employers that voluntarily establish a drug-free workplace program in accordance with specific criteria and approved by the appropriate state regulatory agency may become eligible for a premium discount on their workers’ compensation insurance premium.