In part one of this article, we discussed the employer’s requirements in deciding to consider the implementation of the Montana Workforce Drug and Alcohol Act. Once a decision is made, the employer must develop a written policy in accordance with the statute, which needs to include: definitions of key terms regarding drug and alcohol testing, name a policy coordinator responsible for program, set a standard of conduct, discuss rehabilitation, the sanctions for violating the standards of conduct, list the types of testing the employer will conduct, list by job title the employees to be tested, state what drugs the employer will test for, what the prohibited alcohol concentration level is, the testing procedures, dispute resolution procedures and confidentiality requirements. Employers should also provide employees with information on the hazards of illegal substances.
Each employer has an option for termination or rehabilitation for any employee who tests positive.
A Case for Rehabilitation: Based on the employer’s company culture, rehabilitation may be the “right” thing to do. Allowing for rehabilitation speaks volumes about a company’s culture, and tends to often add to the employer as being an “Employer of Choice.” Additionally, despite the fact that the federal regulation provides for termination as an option, termination could potentially bring with it litigation.
A Case for Termination: Termination provides the employees of the company with an understanding that the company is serious and that zero tolerance means zero tolerance. Rehabilitation can present the problem of temporarily filling the position while the employee is at rehabilitation. Secondly, if the employer has a policy of rehabilitation, and an employee that tests positive goes through rehabilitation and then tests positive again in the near future, there is an expectation by the employee that they will be allowed to rehabilitate again. If the policy provides for rehabilitation, it must specify, “first time only.” Lastly, if the employer has the option of termination, and an employee admits to using illegal substances or abusing alcohol, the federal statutes require the employer to allow rehabilitation, but only in this case.
In either case, if an employee refuses to be tested, the policy is to be followed, which means that if the company provides for rehabilitation, then the employee should be allowed to consult with a substance abuse professional. If they refuse, then they are terminated.
Another decision point for the employer is which types of tests to include in their program, such as pre-employment, random, reasonable suspicion and post-accident. Unlike the federal mandate, the state statute allows the employer to choose any or all of the options. (If the employer chooses rehabilitation, then they must also choose return to duty and follow-up testing).
Making a decision to test your employees for drugs and alcohol is a decision not to be taken lightly. Decisions need to be based on a complete understanding of state statute and appropriate consultation with an attorney that understands the Montana Workforce Drug and Alcohol Testing Act.
Paul H. Hutter, SPHR, is vce president of the Western Region with Associated Employers in Billings, a private employers association that provides business and human resources expertise to its members. To learn more, please visit us at associatedemployers.org.