By: Thomas H. Welby Thomas H. Welby Published: April 2006

Safety Policy: Testing for Substance Abuse: A Useful Tool, Not a Silver Bullet

Last month, we looked at the extent and consequences of drug and alcohol abuse in the construction industry, and concluded that if you don’t think this threatens your company, you’re probably wrong.

Your company needs a substance abuse program, which ideally should include: a drug-free workplace policy, supervisor training, education, testing, and employee assistance. It costs nothing to proclaim a policy, but drug testing (and employee assistance) can strain your budget.

Looking at broader efforts to curb drug use, one can’t help noticing that decades of spending hundreds of billions of dollars, exploding prison populations, and chest-beating about “zero tolerance” has produced only modest, and far from cost-effective, results.

What, then, about workplace drug testing? Is it effective? Economical? Should a construction employer — particularly, one for which the cost is significant — make that investment? What are the benefits and limitations?

Even if you’re skeptical about prohibition as an effective policy, you no doubt concur that your jobsite is a terrible place for people who are high. Even if you question whether weekend drinking or marihuana use should lead to the loss of employment, given the built-in hazards of running a construction site, you have an interest (maybe even an obligation) to discourage and detect the use of the most potent drugs, such as crystal meth, which have a high potential for addiction, impaired judgment, and disordered, or even violent, behavior.

If safety is your top objective, the legality of particular substances, or how their use is depicted by Hollywood and on TV, cannot be your primary concern. There are almost too many substances to keep track of, and they vary as to the impact that they have on the user’s ability to work safely; social and even medical awareness of them as a substance abuse problem; their capacity for compulsive use, and as causes of users’ becoming dependent (or increasing their use to dangerous levels); the ease and expense of testing for them; their availability; the likelihood that users will steal from the jobsite and fellow employees to purchase their drug of choice; and the reliability of existing tests in identifying them.

Thus, all substances that can be tested for are not created equal. A majority of the adult population uses alcohol, which is legal. Binge drinking in the 18-to-25 age group is a growing worry, and no street drug comes anywhere close to alcohol, in terms of negative public health and economic impacts.

However, while most construction contracting company owners probably don’t use crystal meth or crack cocaine, many like a couple of beers after work, drinking together after work or at social functions is not just tolerated but expected, and most have used alcohol to excess now and then. Does widespread acceptance of alcohol reduce its status as a huge public health and workplace safety problem? No, but while you can certainly prohibit on-the-job drunkenness, you probably can’t insist that your entire workforce swear off alcohol entirely.

In addition to such difficulties as there be in fashioning policies that you and your employees will agree are in their interest, while treating the objectively more dangerous substances as such, there are the problems of prescription, “designer,” and off-the-beaten-track drugs.

Americans, as a group, are more highly-medicated than in times past. Many take mood-altering drugs by prescription, or even narcotics such as methadone, as part of a valid medical program to curb their addiction. It may be legally problematic to discharge a methadone patient — but since the substance much resembles heroin, and may indeed impact the patient’s safe performance of his job, should you encounter such a situation, you probably need your lawyer and your consulting doctor talking with your employee’s lawyer and physician.

Warnings not to combine some widely-prescribed medications with alcohol may be understated, to avoid harming the sales of (for example) some antidepressants and other drugs that carry little or no social stigma. One prescription sleep medication thought to be safe has lately come under suspicion, as having contributed to automobile accidents occurring the day following use. Can you test for that? You may know that steroids taken by athletes can damage joints and the liver, and cause an increased risk of heart disease, stroke, and some cancers. Did you know that steroids can also cause dizziness, mood swings, anger, depression, aggression and hallucinations?

Drug testing has a part to play in curbing the safety risks associated with substance abuse by people employed in construction. It’s a mistake, however, to think that if you test for drugs, and fire anyone who tests positive for anything, you will succeed in putting an end to substance abuse in your workforce.

Reality is, as usual, more complex. For example, while most drugs pass out of the system within 3 days or less, marihuana, being fat-soluble, leaves traces that can be detected for a much longer time. Thus, you may feel you’ve struck a blow for your drug-free workplace after firing Employee A following his positive test for marihuana, although he may have used it while on vacation two weeks before. Possibly, this employee worked for you for years, without once being “stoned” on the jobsite.

You could remain blissfully unaware that Employee B is on the road to becoming a chronic user of crystal meth (a highly dangerous and addictive drug associated with paranoia and violent behavior) because your drug testing company views meth as a problem only in other parts of the country, and doesn’t recommend that its New York clients test for it.

Employee C may present as bright-eyed and drug-free, but lately he’s been doubling up on his prescription anti-anxiety medications, and so has become unable to reliably and safely operate heavy equipment. The doctor who advises your testing company has routinely prescribed that medication for years, and enjoyed golf vacations at the expense of its manufacturer. He doesn’t see it as a problem. Employee D may have come close to causing a disastrous accident a few months ago while high on prescription painkillers, which he buys illegally at a bar. He doesn’t abuse this medication often, but is unaware that his binges involve dangerously high dosages. By chance, your company’s random tests have yet to disclose this user’s infrequent, but risky, binges.

For some months, Employee E, an operating engineer, and his girlfriend have taken gradually-escalating doses of GHB, a steroid and “club drug,” on the weekends. This drug may be unknown to your testing company, but can cause delusions, loss of reflexes, tremors, amnesia, vertigo, hallucinations, and coma. It’s also addictive, and withdrawal can be very unpleasant. Employee F is just 18, and hangs out with his younger brother’s friends from the local high school. Buying alcohol is still a problem for the younger guys, and they lack money to buy the pricier drugs, so this young employee joins them in “huffing” a variety of household chemicals (some of which cause brain damage) to get high. Some of these substances are rarely tested for, in part because most adults have trouble imagining that kids will be so dumb as to disregard boldface warnings of brain damage, death, etc. from deliberately inhaling the highly-toxic contents of various containers. Unfortunately, some will.

As you can see, it’s not so simple as calling in a testing lab to work a quick fix of your company’s drug problems. Indeed, there are lucrative business ties amongst pharmaceutical producers, some drug testing laboratories, and many ordinary physicians. Labs connected to prescription drugmakers may be hesitant to test for, and to risk stigmatizing as unsafe, drugs with bona fide medical uses that may nevertheless pose a hazard when abused.

In addition, while usually testing drives down over time (often dramatically) the numbers of employees who test positive, in some instances the high rate of detecting marihuana use presents a potentially deceptive picture. Arguably, it’s not a net gain for health and safety if “recreational” marihuana users switch to more potent and addictive drugs that are harder to detect in urine tests.

If you plan to test, consider whether an outfit vying for your contract is candid about the limitations of its product, or offers the false assurance that hiring them guarantees something close to an end to your company’s drug and alcohol problems.

As a “reality check,” consider transportation, in which the Omnibus Transportation Employee Testing Act of 1991 has for years made testing mandatory for many employees in trucking, aviation, and many other safety-sensitive transportation jobs.

In long-distance trucking, drug-testing has expanded, while regulations governing the drivers’ hours have been weakened, the enforcement of equipment safety rules has been de-emphasized, and government funds for that purpose have been cut.

You can rave until Kingdom Come about the virtues of testing and “zero tolerance,” but if truck drivers must routinely drive 18, or 24 hours or more to pay the mortgage, many of them are going to use amphetamines and other drugs, period.

And, if trucking companies won’t pay to properly maintain their equipment (and government cuts both enforcement and funds) it’s cynical to pretend that firing a handful of drivers who fail drug tests constitutes effective protection for the drivers or the public.

Consider one report from a State Police agency in the western U.S. Despite widespread drug-testing in the long-haul trucking industry, one test of 373 trucks entering the State (and their drivers) found 9.3 percent of the drivers with drugs in their systems (chiefly, cocaine, methamphetamines, marijuana and prescription painkillers). A fourth of the trucks had bad brakes, bald tires, cracked wheels, and other significant problems.

There, in a nutshell, there you have the “bad” news about drug testing — the “silver bullet” remains to be found. Still, there is good news to report concerning drug testing as well.

First, testing methods are becoming more accurate, less intrusive (e.g., saliva collected with a cheek swab) and less costly. Whereas not long ago most tests were for just a handful of substances (marihuana, cocaine, heroin) today companies are increasingly sophisticated about what drugs are widely abused, and they can recommend tests accordingly. The turnaround time on tests has improved, as well.

Second, while sharp drops in the number of employees testing positive may result in part from drug users switching to substances harder to detect, or not tested for, accompanying reductions in absenteeism, employee turnover, and workers’ compensation claims are another matter. These are real benefits, and often they are dramatic. Is testing perfectly effective, or a cure-all? No. Is it more useful and cost-effective than 5-10 years ago? Properly done, yes.

Those of us who are middle-aged and have raised children know that use of drugs and alcohol amongst the young remains a huge problem, and a few who have not become chronic users will suffer tragic consequences from their experimentation. Most parents and drug-treatment professionals would agree, however, that there is a correlation between resistance to substance abuse amongst young people, and their perception that their elders care about what happens to them.

As an employer you’re not your workers’ mom or dad, but if you look around your jobsite, you’ll probably see that many of your employees are young, and few (if any) are hard-core addicts. Testing (and, probably more importantly, spending 40 hours a week working shoulder to shoulder with responsible adults who disapprove of drug and alcohol abuse, and look out for each other) can have a significant positive impact. Even if some stray now and then from the straight and narrow path, by reducing the frequency and severity of your workers’ drug and alcohol escapades, you can greatly reduce the odds of a serious drug-related jobsite event.

Perhaps most importantly, although occasional, “recreational” users of many drugs that can impair safe job performance may escape detection, it’s those who can’t or won’t limit their use — despite knowing that random testing is a daily possibility — who pose the gravest danger. Can you afford not to identify these users? Does it benefit them to delay detection, and having to face up to their problem?

So long as you are aware of the limitations of drug-testing, and can live with success in less than absolute terms, you will probably find testing to be worthwhile.

As builders, engineers, and lawyers, we live by identifying problems and applying solutions. Drug and alcohol abuse, however, is one of those chronic problems that won’t be solved simply, or once and for all. Since ignoring the problem can’t be an option, your choice is to wrestle with it wisely, or ineffectively. How you address it can result in lives saved or lost, and will probably have a great impact on the profitability, or even the survival, of your company. Therefore, get the best — and most disinterested — professional advice you can afford, set a good example, and listen to the feedback that your workers can provide.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

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