Drug Free Work Place

Drug Free Workplace Laws

Drug free workplace. It sounds good. But what does it really mean?

In Ohio, there is not one, count them, but four related but different Drug Free Workplace programs. They are:

   1. Federal Drug Free Workplace Act of 1988;

   2. Regulations of United States Department of Transportation, United States Department of Defense and the Nuclear Regulatory Commission;

   3. Ohio Bureau of Workers’ Compensation Drug Free Workplace Program;

   4. Ohio Drug Free Workplace Policy for state construction contracts;

Drug Free Workplace Act of 1988

The following are required to have a Drug Free Workplace program under the Drug Free Workplace Act of 1988:

   1. Recipients of federal grants;

   2. Persons having a federal contract valued at $25,000 or more;

   3. Persons having subcontracts with federal contractors having a Drug Free Workplace requirement.

People in the above list must have a Drug Free Workplace policy that complies with the Drug Free Workplace Act of 1988. The policy is not required to have mandatory testing.  However, the employer must have a written policy.  The policy must explain what is prohibited and identify the consequences of violating the policy.  Employees must read and consent to the policy.   The employer must have an awareness program to promote compliance.  Employers must disclose drug related convictions in the workplace to the federal agencies with which the employer has a grant or contract within 10 days after receiving notice from the employee or others.  The employer must have an ongoing program to maintain a drug free workplace.

There are different types of policies that may be acceptable under the Drug Free Workplace Act.  At a minimum, employers must act on a reasonable suspicion of work place drug use.  The United States Drug Enforcement Agency urges employers to include drug testing and to prohibit any amount of prohibited substance in the blood during work time (effectively prohibiting all illegal drug use).

Federal Regulations of Certain Agencies

The United States Department of Education, Department of Defense, and Nuclear Regulatory Commission also have mandatory Drug Free Workplace policies.  The one applicable to the most industries under the United States Department of Transportation.  These regulations apply to all employers, persons who drive “commercial motor vehicles” (49 CFR Parts 382 and 383).  A commercial motor vehicle is defined in 49 CFR.383.5 is a motor vehicle having a gross combination weight rating of 26,001 pounds or more inclusive of a towed unit with a gross vehicle weight of more than 10,000 pounds or has a gross vehicle weight of 26,001 pounds or more or designed to transport 16 or more passengers including the driver, or is used as transportation of hazardous materials which require the motor vehicle to be plaquered under the Hazardous Materials Regulations. Drivers subject to these regulations must undergo drug tests pre-employment, randomly throughout employment, after accidents, anytime there is a reasonable suspicion of drug use, and upon return to duty. The testing program must comply with extensive regulations issued by the United States Department of Transportation.

Ohio Bureau of Workers’ Compensation Drug Free Workplace Program

This strictly voluntary Drug Free Workplace Program is encouraged by the Ohio Bureau of Workers’ Compensation.  Employers can obtain discounts in there Workers’ Compensation premiums by adopting Drug Free Workplace Programs that include testing pre-employment, upon reasonable suspicion, post-accident, and follow up to assessment and/or treatment.  Employers must adopt written programs with employee education and supervisor training.  There are three levels of programs which have increasing premium discounts.  Programs above level one require random testing.  The testing and training programs are supplied by private vendors.

Ohio State Construction Project Drug Free Workplace

On September 20, 2002, Ohio Governor, Bob Taft, signed and executive order mandating that state construction contractors have Drug Free Workplace Programs.  The contractors must be enrolled in the Ohio Bureau of Workers’ Compensation and in good standing in the Drug Free Workplace Program or in a similar program approved by the Ohio Bureau of Workers’ Compensation.

Adopting a Drug Free Work Place Policy
Don't Just Copy Someone Else's

So you want to adopt a drug free work place policy? It is not as easy as it sounds. One size does not fit all. A number of questions need to be explored before you do it. Not all policies are alike. Not all industries and employers are alike.

We recommend an in-depth personal consultation with knowledgeable legal counsel. T he policy must be written not only to meet minimum legal requirements, but to reflect your business reality.

You need to decide why you want the policy. Because you are a generally good corporate citizen? Because you have a federal grant or are a federal contractor? Because you want to qualify for workers' compensation discounts? Because you employ semi-truck drivers? Because you are working on state construction contracts? Each reason has different ramifications.

Every business has a different culture and has different needs. Some industries are rife with drug use, making it extremely difficult to hire people with no recreational use of drugs. Some industries are much less difficult. You need to decide as an employer, how tolerant you are of recreational drug use off the job. Different circumstances will require different policies, because once you adopt your policy, you need to live with it and enforce it uniformly (even against your top sales person!).

In Ohio, to qualify for Workers Compensation discounts, you must have a policy that includes testing (among other eligibility qualifications). There are three levels of discount. The first level (10% discount) requires pre-employment testing, reasonable suspicion testing and post-accident testing. The second level (15% discount) adds random testing along with at least one (but no more than four) year's experience with a program qualifying for level one. Level 3 (20% discount for up to three years) requires two years experience at level 2 and requires that the employer has adopted a mandated ten step business plan. To participate and receive the discounts, employers must apply to the Bureau of Worker's Compensation.

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The information on this web site is for general reference only.  To apply the information to an individual situation, you must consult a qualified professional.  Unless you contract for specific services from us, there is no attorney-client relationship established.

Carroll, Ucker & Hemmer LLC
175 S. 3rd St., Suite 200
Columbus, Ohio 43215
614) 547-0350
fax: (614) 547-0354

Email: dcarroll@cuhlaw.com

All members of Carroll, Ucker & Hemmer LLC are licensed to practice law in Ohio.  

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