As human resources specialists who are developing drug and alcohol policy, we are expected to be knowledgeable with both the federal and Montana regulations.
Montana’s Workforce Drug and Alcohol Testing program is voluntary. Even if an employer qualifies, the employer is not required to implement a testing program. Conversely, employers in Montana may not indiscriminately apply drug and alcohol testing on its employees at will and at random without first having satisfied themselves (and potentially the state) that the employees they want to test qualify under the state statute.
The legislation that drives this program is complex and vague. The employer must consider and protect the privacy rights of the affected employees, understand that there is potential legal liability for not enacting a program available to them through legislation, and understand that there is some potential for legal liability for not operating the program consistently and as defined in the program.
The first thing that needs to be determined: Do all or some (selected groups) of employees fit into the state’s definition of affected employees? The state defines an “eligible employee” as an individual engaged in the performance, supervision or management of work in a hazardous work environment, position affecting public safety or fiduciary position for the employer.
A hazardous work environment can be defined as areas where testing is mandated by federal law (Department of Transportation); operation of or work in proximity to construction equipment, industrial machinery, or mining activities; or involves handling or proximity to flammable materials, explosives, toxic chemicals, or other similar substances. This category is very clear and can be applied to all employees that work in an environment that puts them at risk by the nature of the work or by the environment that surrounds them.
A position affecting public safety can be defined as police officers, firefighters and similar employees. Potentially included, but not well-defined, are employees driving company equipment on public roadways and employee actions that could adversely affect the public. This category is less clear. In addition to police, fire and EMTs, this category could be expanded to anyone driving a company vehicle, equipment or possibly even a private vehicle on company business. This becomes a decision for the employer as to what they are comfortable with.
A person in a fiduciary position for the employer can be defined as any position where the employee receives money or property or performs duties in a position of trust. This category is the least clear of all. AE interprets this to be anyone with enough power and authority in a company to divert or embezzle large sums of money (CEO, CFO, comptroller, etc.); not the clerk at the counter taking cash.
The next step is for the employer to develop a Montana workforce drug and alcohol testing policy and procedure. Keep in mind that the statute requires employers to provide their employees with 60 days notice of the program, prior to the start of the testing. New hires, (post-offer, pre-hire) may be pre-employment tested prior to this 60-day waiting period, as long as the position for which they have been hired falls within one of the three required categories.
Once a decision to implement the Montana Workforce Drug and Alcohol Act 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 vice 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 www.associatedemployers.org.