To address the problem, employers not only must require pre-employment drug tests, but also periodic, random on-site testing, Lobsinger recommended.
“Pre-employment drug tests are no more than I.Q. tests,” she said. “Resourceful drug users can figure out how to pass them, whether it's drinking water or buying urine over the Internet.”
Meanwhile, an employee who is “whacked out on drugs can cause an accident that puts a company out of business overnight,” Lobsinger said. She especially recommends random testing for drivers and other workers who perform dangerous tasks, including operating forklifts or working on oil and gas rigs.
Jim Priest, a former longtime labor lawyer and executive director of Fighting Addiction Through Education Inc., agrees. Studies show that individuals under the influence are behind about 80 percent of all crimes, he said.
An ethical approach to substance abuse in the workplace requires more than drug testing and a zero tolerance approach, he said. It requires employers go beyond a policy and include education, access to employee assistance programs, whether mandated or not, and supervisor training in identifying and dealing with substance abusers, he said.
“The new laws have subtle underpinnings that drug users are bad people and to get them out of the workplace,” Priest said. “But 80 percent of people with substance abuse problems are employed and mostly fine, most of the time.
“Addiction is a disease of the brain, and you have to look at it as a health issue, not a crime issue,” he said. To have the most productive workforce, he said, employers can't ignore the private lives of employees, including those struggling with and distracted by the addictions of kids or spouses.
Employers aren't automatically covered by the new workplace drug testing laws, said Tanya Bryant, director in Crowe & Dunlevy's labor and employment practice group. To take advantage of them, they need to amend their written policies and give employees 10 days' notice of changes, Bryant said. The policy in place at the time any drug and alcohol testing is done will control any subsequent legal proceeding, she said.
Bryant recommends requiring signatures from employees, acknowledging they're aware of and understand the policy changes.