As owner of OshaSure, a Birmingham-based safety and risk management firm, I evaluate workplace safety and risk for small to mid-sized companies. Falling into my scope of expertise is the company Drug Free Workplace Program (DFWP). It is troubling to report that a large number of my evaluations of this highly beneficial program reveal serious risk to the client.
Make no mistake about it; there is not another program that reduces the exposure to the employer more than does a well-crafted “DFWP”. The discount programs help offset the costs of the program. A well organized, legal “DFWP” will often equal in cost the amount of the discount or more. .[WCx]
Benefits of a Drug Free Workplace Program
The main benefit of the “DFWP” is the Workers Compensation carrier can deny a claim based on a positive test for drugs. Since initial development of the “DFWP” in the states, case law and precedent have determined that the “positive” drug test results must be causal to the injury. This means, in simple terms, that if the employee is standing somewhere on the job and a brick falls on the employee’s head, for example, the claim would not be paid even with a “positive” drug test result. This is due to the fact that the falling brick has nothing to do with the employee’s intoxication. This is fair and leaves most accidents well within the realm of denial of the claim.
Getting to the heart, here, my evaluations suggest that many firms are not placing a high enough emphasis on individual compliance with this program. I find glaring omissions such as little or no formal written policy or a lack of proper notification to existing employees and “new hires” about required testing. Further, not educating how prescription or “OTC” drugs can alter a test or alerting employees how and when to inform the employer that they are taking a prescription drug.
Customize the Program
Prescription drugs that can affect one’s ability to perform must be reported. Employers have the duty to place the employee in non safety sensitive positions, if applicable, for the course of the prescription.
This is just one of many reasons that all programs must be customized to the client.
The details of your program must be determined from the start to include situations unique to your company. The company policy should be developed by a knowledgeable HR employee or consultant and then reviewed by a labor attorney, familiar with your operations, and the DFWP laws and administrative codes in your state.
Training
Finally, training requirements vary from state to state; however, training in DFWP is required by all states; at minimum, employees are required to have initial and periodic training. Supervisors must have training in recognizing the signs and symptoms of alcohol and drug abuse and must be familiar with all related company policy and procedures. (I suggest annually for both)
Do Not Do it Yourself
Next, another troublesome finding with testing, I have found many companies selling “do it yourself testing” including hair, urine or saliva testing. The gold standard and all state programs rely on urine testing through a certified laboratory. A trained collector, along with a facility restroom dedicated and set up solely for drug testing is required. No matter the purported legality, the difference in cost of these types of “self tests” and a certified laboratory along with a medical review officer (MRO) is negligible considering what is at stake.
Remember, the discount is given not as a profit item but to help pay for the program and testing. There is no advantage in saving a small amount of money against the risk of losing a case due to improper testing. (This topic could well be its own article but for the purpose of this writing I assure you that using a nationally recognized laboratory along with a competent MRO is a “no brainer” to any risk assessment.)
Review your Program
Regular review of your DFWP is highly recommended. Make no mistake about it; this is a very punitive program that has the ability to take a huge amount of coverage from an employee. As such, the stakes are high, the company will be viewed in litigation as the “big bad wolf” after “the little guy employee”. However, the law is clear and case law backs this up. If all ducks are in a row, the company can expect protection intended by the law. .
It is not difficult or excessively costly to establish and maintain a program that is properly developed and funded from the start or at the point of re-establishing one after a deficiency is found. NOTE:
Remember to receive your discount, you must verify annually that the program is complete. This consultant asserts that it is likely for the carrier to ask for a refund of discounts, if your program is not complete! .[WCx]
Most challenges will be clear and your firm will be protected from excessive loss due to an employee’s violation of your company drug policy.
In closing, I suggest if you have not recently or regularly reviewed your DFWP, now rather than later is the time to do so. Please see our workers comp resource center at LowerWC.com for more on state by state Drug Testing
Brian Hill is owner of OshaSure in Birmingham Alabama and has over 20 years as a workplace safety and risk consultant. Brian was previously a pilot for a major US airline and member of the company’s interdepartmental safety committee. He found his new career in safety after the closing of the airline in 1991. Brian has found the same passion he had for flying in assisting companies with safety, heath and risk issues. For more information click on www.oshasure.com 205-296-0601 oshasurebh@aol.com
WORKERS COMP MANAGEMENT MANUAL: www.WCManual.com
MODIFIED DUTY CALCULATOR: www.LowerWC.com/transitional-duty-cost-calculator.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
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