Enforcement and Performance

Introduction

In the enforcement of an organization's substance abuse policy, several principles should be considered. First, substance abuse enforcement activities must be clearly and closely related to performance standards established by that organization and clearly articulated to all personnel. The basis for enforcement activities must be the employees' expected performance within that organization. Second, the organization must make every reasonable effort to protect the privacy interests of the employees and to conduct all enforcement activities with an understanding of their impact upon the full scope of the organization's activities. Third, the enforcement activities must be primarily guided by the goal of assisting employees to overcome substance abuse problems and only secondarily by a goal of punishment.

In developing an enforcement strategy, there are three essential elements that need to be addressed: first, the issue of drug testing; second, the procedures used to identify the extent and type of substance abuse problems existing within the organization; and third, the procedures by which organizations involve local law enforcement in addressing the issue of substance abuse within the organization. The committee has developed guidelines for enforcement within each of these areas. The remainder of this report outlines preliminary thoughts on each of these components of an enforcement strategy.

This work was guided by the belief that an employer must establish and maintain an awareness of real or potential drug and alcohol abuse among its work force. Timely knowledge of such problems will afford an employer more opportunities to initiate corrective actions. However, to establish and maintain such an awareness, an employer must inform and educate all levels of personnel of the adverse impact of drug and alcohol abuse within the workplace. Employees must know that they are required to be fit for duty at all times and, if necessary, demonstrate their fitness. Lines of communication must remain open and all employees must be encouraged to contribute toward keeping their work environment substance free. Supervisors should be trained and alert to recognize that fitness for duty problems among their subordinates may be indicative of substance abuse. Education, then, is a critical component of an organization's entire substance abuse policy and is especially important as the basis for establishing a program of enforcement.

Drug Testing

The committee carefully reviewed the issues surrounding various uses of drug tests in the workplace. Based on that review, the committee recommends the following approach. Use of drug testing must be based on carefully developed drug testing protocols. It is especially important that if drug testing is to be utilized, that it be done in a way that guarantees to the highest degree possible that drug tests are done fairly and results are accurate. This will require the use of confirmatory tests, the establishment of strict chains of command and specimen control, the utilization of testing procedures and testing organizations that have clear records of reliability and validity, and the provision of a right to review all aspects of the drug testing program.

Provided such protocols are established (the procedures recommended by the U.S. Department of Health and Human Services--Mandatory Guidelines for Federal Workplace Drug Testing Programs--should be considered), the committee recommends that each employer consider the value of a policy of pre-employment testing for all appropriate applicants. The committee believes that such pre-employment testing is within the boundaries of existing law, and that it would establish a very effective way for organizations to control entry into their work force of individuals with known substance problems. In addition, it would send a clear message to the community that employment for those who are using drugs and alcohol would be less likely. At the same time, any such policy must accept the notion that some organizations may test and still decide to hire those individuals who test positive, provided that participation in programs appropriate to their substance problem are required as a condition of employment. Second, the committee recommends adoption of a policy for cause drug testing and testing that is provided within a treatment regimen. Organizations should be able, when there are clear indications of performance problems and when indicators suggest that these performance problems are related to substance abuse, to require that individuals submit to an established testing protocol. Similarly, for individuals who are found to be substance abusers and who are then enrolled in a treatment program, substance testing should be permissible within that treatment. For cause testing and treatment testing are increasingly being utilized within the private and public sectors and are encouraged by the committee. Third, approval of the policy of random testing for sensitive positions is recommended.

The organization would be required to define a "sensitive position" and would, of course, need to make this known and to develop a reasonable basis for such classification. For those sensitive positions, testing would be appropriate both at entry and on a periodic basis. Finally, adoption of a policy which allows for drug testing during any routine physical required by the organization is recommended. This might be at the time of promotion, for example, and again would establish clearly the importance the organization places on controlling substance abuse.

An important issue that applies in all aspects of testing is the confidentiality of results and the scope of such confidentiality. There is concern, however, that any policy established or recommended by the full committee would be developed within an understanding that access to results should be very closely guarded both for the protection of the individual and the protection of the organization.

Finally, there is the problem of what to test for. Organizations have adjusted the scope of testing dependent upon the nature of the drug problem among their employees. For example, within an educational setting, testing almost always includes steroids, which may not be a problem in the normal work environment.

In summary, a policy of limited drug testing--drug testing that is limited to pre-employment, for cause, testing related to treatment, random testing for sensitive positions, and testing in conjunction with routinely required physical examinations--is recommended.

Becoming Aware of Substance Abuse Within an Organization

In addition to drug testing, an organization should be encouraged to utilize other means of gaining knowledge about the substance abuse problems of its employees. All managers and supervisors should be trained to identify job performance problems that may be caused by substance abuse, and to be aware of the appropriate response to such employees. Employers should also consider establishing some method that would enable employees to confidentially or anonymously report any drug supplier in the workplace.

An employer who solicits anonymous information must use it responsibly and with the knowledge that the information received is not always accurate or factual. The provider of such information may have honestly misinterpreted what was seen or heard or, in the extreme case, may be maliciously attempting to improperly use the system to settle a grudge with a co-worker or supervisor. An employer, while using such efforts to become more aware of substance abuse problems in the organization, must scrupulously avoid situations that could result in the misuse of any information provided by employees. An employer that does not have attorneys, security personnel, or other staff who are trained and experienced in analyzing and acting on such allegations should consider seeking external professional guidance. It is also reasonable to expect that employers will establish early liaison with local law enforcement to determine in advance what law enforcement's response is likely to be within anticipated parameters and what assistance local law enforcement can give in interpreting such information.

The Role of Local Law Enforcement

When organizations become aware of cases involving known or suspected abuse of local drugs on their premises, it is reasonable to expect that they will and should, in many instances, turn to local law enforcement for assistance. In order to facilitate this, organizations should develop protocols describing the anticipated relationships between their organization and local police. The nature of the protocol may very well depend upon the nature of the situation faced by the organization. These situations can be described either as emergencies or cases involving differing levels of suspicion. These will require different forms of relationships with law enforcement.

The local law enforcement agency should be contacted by an employer whenever the employer determines police are needed immediately to handle an emergency drug situation such as persons actually observed using drugs. The police should be contacted using the appropriate emergency phone number (usually 911). These situations will usually result in a uniformed police officer responding to conduct an investigation, make an arrest if appropriate, and prepare a report.

The employer should, as with any emergency situation, be able to describe to the responding officer the activity observed, identify involved persons and witnesses, etc.

If an employer suspects specific substance abuse acts are occurring within his establishment, he should contact the local law enforcement agency's narcotics unit. The employer should have as much available information (who, what, when, where, and why) as possible before making this initial contact.

The police response will usually involve an appointment to meet with the employer or key management person to discuss the situation and make an evaluation. If the department believes there is sufficient evidence (e.g., pinpointed problem and identified suspects, witnesses who can testify, and complainant/employer who will prosecute/testify), the police department may take appropriate action (e.g., surveillance, warrants, etc.) if adequate resources are available. The employer may be asked to gather more facts from supervisors, security staff, outside investigative services, and so on.

If an employer has some suspicion there are some substance problems on his premises or he has concerns about substance abuse among employees, he should contact the local government drug and alcohol abuse coordinator or the local law enforcement agency's narcotics unit.

The local government's response usually begins with an assessment of the situation. An effort should be made to determine the knowledge and understanding the employer, his key managers, and line supervisors have regarding drugs in the workplace. Quite often the drug and alcohol coordinator, police department staff, or some other department agency will provide some basic training to supervisors or managers on what they should look for regarding usage among employees, symptoms of usage, conditions and situations to safeguard against, and so on.

An employer should not expect the local law enforcement agency to conduct a lengthy undercover investigation of their employees, particularly if the employer only has suspicions. Usually the local police department does not have the resources to undertake such activities. If such an investigation is necessary, the employer will be prepared to use the services of a private security investigator.

The employer who has his own security force should see that his security manager has and maintains close cooperation and coordination between his force and the local government law enforcement agency. Similarly, the police department should keep the company's security manager informed of conditions and situations affecting their employees and operations. The security manager should be informed about any suspected drug activities occurring in the company.

The employer, whenever feasible, should support the carrying out of the criminal prosecution of defendants involved in drugs in the workplace cases. The nonjudicial sanctions, such as demotion, transfer, and termination, while appropriate should be supplemented by criminal prosecution. These cases will involve the more serious illegal acts, distribution, transportation, and sale of drugs. It is important for the employer to follow through, thereby sending the message that illegal activities will not be condoned by management. The employer should make it convenient for employees who are victims/witnesses to attend appropriate hearings, conferences, and trials.

The local police agency and prosecutor must keep the employer informed on the progress of the case as it goes through the criminal justice system. Where possible, decisions to offer plea bargains should be discussed with the employer prior to the offer.

It is recommended that a performance and enforcement strategy exists that involves drug testing, the use of techniques to identify substance abuse problems within the organization, and appropriate liaison with local law enforcement.