By Christine M. Jensen
This information is provided for educational purposes only.  Reader retains full responsibility for the use of the information contained herein.

Contrary to what your Union Business Agent may try to tell you, you may drug test members of your unionized workforce.  With more states legalizing the use of marijuana for medicinal and even recreational purposes, it is more important than ever that you protect your company’s assets by drug testing employees when appropriate.

The NLRA and Bargaining

The National Labor Relations Act (NLRA) governs collective bargaining activities.  The NRLA requires that employers and the union representing their employees “meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.  The NLRA does not define “other terms and conditions of employment,” within the act.  However, it is clear that drug testing is a mandatory subject of bargaining.

Marijuana in the Workplace

If you operate in a state that has recently enacted legislation authorizing the use of medical or recreational marijuana, you now, more than ever, need to have a drug testing policy in place.  With marijuana legal in one format or another in twenty-seven states in the US, you need a strong drug testing program in place in order to protect your company from liability that could arise due to negligent hiring and employment policies.

Drug and Alcohol Testing Policy

If you have a unionized workforce, expect the union to object to the institution of a drug testing policy. At a minimum, expect them to play an active role in making suggestions and perhaps demands about the procedures for testing as well as the penalties for positive tests.

Preferably, you should propose the institution of a Drug Testing Policy as one of your issues in dispute to the union when you commence bargaining for a new contract.   Although drug testing is mandatory for only certain types of positions, a case can be made for random testing of many union positions that have safety-sensitive components in their assigned job tasks.  Companies can easily present compelling evidence of the safety-sensitive nature of paramedics, nurses, equipment operators, and employees utilizing any type of machinery.  This evidence can leave unions no choice but to agree to random drug testing.

But don’t just be satisfied with positions that are obviously safety-sensitive.  Be certain to carefully review all your job descriptions and job task analysis and classify even non-traditional positions as safety-sensitive, if appropriate.

You’ll need to address these topics in your policy:

  • Rules regarding drug and alcohol use
  • When testing will occur (pre-employment, reasonable suspicion, post-accident, follow-up testing)
  • Collection and Testing Procedures
  • Consequences of a positive test
  • Confidentiality of testing results
  • Acknowledgment of receipt of policy

Other issues you may also want to include in your policy are substance abuse awareness, employee assistance programs, inspection of company property and work areas, and notification by employees when they are charged with a crime involving drugs

Further, you may always test based on reasonable suspicion.  A reasonable suspicion test should be ordered by a supervisor who has undergone training to appropriately and effectively identify possible substance abuse on the job.  An ideal situation has two supervisors who have been appropriately trained observe the employee who is suspected of being under the influence of drugs or alcohol at work and both agree that testing should be ordered.

You can broach the subject of instituting a Drug and Alcohol testing program mid-contract.  The union may file a grievance claiming a violation of the contract if the policy is implemented without bargaining.  Further, they may make a demand that you bargain with them over the policy and you will then be required to do so.  Be prepared for the union to demand information concerning why you want to implement a drug and alcohol testing policy.  They may request information from you as to any knowledge you have about alleged drug or alcohol use in the workplace, metrics regarding the affect drug and alcohol use has on attendance, productively, and workplace accidents, and what type of training supervisors will receive regarding the testing process.

Conclusion

The bottom line – do your homework before just announcing that you will be implementing a drug testing program for your unionized employees.  Be prepared to negotiate the issue and have your ideal policy outlined and work from this point of strength.

Do you have questions about the creation of a drug and alcohol testing policy in your workplace?  Contact the Current Consulting Group, LLC (CCG) at 215.240.8204.  Our knowledgeable and professional staff members welcome the opportunity to work with you and create a policy that works for your business.

(C) 2010-2018 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way full attribution to the author and copyright holder are required.

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