Federal Rules On Reasonable Suspicion Testing For Workplace Substance Abuse

May 28, 2021

By a Biometrica staffer

With several states across the U.S. legalizing the use of cannabis, for medical and/or recreational purposes, over the past six months or so, we began a series of posts on topics related to drug-free workplaces. Our very first post of the series gave an introduction to drug-free workplace programs, the Department of Health and Human Services’ (HHS) guidelines on federal workplace drug-testing programs, and an overview of drug-testing programs. Today, in the second post of the series, we give you a rundown of federal guidelines over reasonable suspicion testing.

Here’s a quick recap of drug testing at workplaces before we get into reasonable suspicion:
– Drug-free workplace regulations are governed by the Drug-Free Workplace Act of 1988. The Act defines a drug-free workplace as one where “the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited.”
– Most employers strictly prohibit the use, possession, and sale of illegal drugs and alcohol at work. Some employers that are regulated by a U.S. government agency like the Department of Transportation have mandated procedures in place. The Federal Drug-Free Workplace Program is a comprehensive program that addresses illicit drug use by federal employees.
– Employers with successful drug-free workplace programs report improvements in morale and productivity, and decreases in absenteeism, accidents, downtime, turnover, and theft. Those with long-standing drug-free programs have also reported better health status among employees and family members and reduced healthcare costs, the National Institute on Drug Abuse (NIH) says on its website. 

Some schools, hospitals, and places of employment require drug testing. This can be done in various ways, including pre-employment testing, random testing, reasonable suspicion/cause testing, post-accident testing, return to duty testing, and follow-up testing. Tests vary, depending on the type of drug being tested for and the type of specimen being collected. Urine, hair, saliva (oral fluid), or sweat can be used as test specimens.

Regulations by the Federal Transit Administration, for instance, say an employee must not:

  • Consume alcohol while performing a safety-sensitive function, four hours prior to performing the function, and up to eight hours following an accident or until the employee undergoes a post–accident test, whichever occurs first.
  • Ingest illegal drugs at any time

Workplace drug-testing programs are formulated with the end goal of detecting the presence of alcohol, illicit drugs, or certain prescription drugs. It is considered a way to prevent and deter employees, and is often only one part of a comprehensive drug-free workplace program. Both federal and non-federal workplaces may have drug testing programs in place. All workplace drug-testing programs must comply with relevant local, state, and federal laws.

What Does Reasonable Suspicion Mean?

As the title suggests, reasonable suspicion implies that an employer has a sufficient cause to believe that someone employed by them has been using drugs, although it could also extend to include alcohol abuse on the job. It’s sometimes also interchangeably used with for-cause testing. “You may decide to test employees who show discernible signs of being unfit for duty (for-case testing), or who have a documented pattern of unsafe work behavior (reasonable suspicion testing.) These kinds of tests help to protect the safety and wellbeing of the employee and other coworkers,” the Substance Abuse and Mental Health Services Administration (SAMHSA), which runs a helpline to aid in the creation and running of drug-free programs at workplaces, says on its website.

It cannot be based on hunches. There has to be a legitimate reason behind it, and it has to be contemporary and not based on something that happened in the past. It can, however, vary depending on circumstances.

How does an employer arrive at a conclusion then? Several federal organization websites and some non-profits list out these signs that employers can look for:

  • Direct observation of drug use or physical symptoms of drug use (slurred speech, uncoordinated movement, dilated pupils, blackouts, sleepy condition, slower reaction rates, etc.)
  • A pattern of abnormal conduct or erratic or aggressive behavior
  • Attendance issues
  • Arrest or conviction for a drug-related offense, or the identification of the employee as the focus of a criminal investigation into illegal drug possession, use, or trafficking
  • Newly discovered evidence that the employee has tampered with a previous drug test

There can, of course, be other signs that may crop up depending on circumstances and the individual employee/employer involved.

So, what happens once an employer does identify enough cause for reasonable suspicion? We’ll use the FTA guide for transit supervisors to answer that.

“The regulations require that a reasonable suspicion referral must be based on a trained supervisor’s specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odor of the person for whom the referral is made. Supervisors must receive at least 120 minutes (60 on alcohol; 60 on drugs) of training and should be evaluated on their performance of that particular supervisory function,” the FTA says in that guide.

Only one trained supervisor’s opinion is required to kick off the process of a reasonable suspicion test. But, the supervisor’s decision must pass the “reasonable and prudent” rule of thumb. This is a cognitive judgment call that requires the supervisor to:
1) assess the facts, signs and circumstances for which the reasonable suspicion is being determined, AND
2) cognitively deduce that a similarly trained and experienced supervisor (having observed the same facts, signs, and circumstances) could have reached the same conclusion.

What Happens Once Reasonable Suspicion Is Established?

Once a supervisor establishes reasonable suspicion, the next step, of course, involves speaking with the employee in question. The supervisor explains why they believe there’s cause for reasonable suspicion and then ask the employee if they are willing to undergo a test. Ideally, every effort is made to conduct the test immediately. In some cases, employees may refuse to take the test. But a refusal can be viewed as tantamount to a positive test result. The supervisor then informs the employee what a refusal to take a test implies.

When an employee agrees to take a test, then the tests are typically done by a trained specialist who visits the workplace to collect specimens. Alternatively, the employee can also visit a certified laboratory. To ensure accuracy, the specimen’s chain of custody must be continuous from receipt until disposal. The kinds of drug tests vary, and there are five main categories that are typically tested for: marijuana, cocaine, amphetamines, PCP, and opioids. For alcohol abuse tests, a breathalyzer is used.

There are a few points to bear in mind here about this kind of testing. First, supervisors directly responsible for the decision to conduct a reasonable suspicion test are usually mandated to respect an individual’s dignity, and keep that information confidential. Second, as part of a comprehensive drug-free workplace program, employees are meant to be aware of their rights from the start of their tenure.

For instance, under the FTA’s drug rule, employees must receive 60 minutes of training on the drug testing program, including health and safety issues, employees’ roles and responsibilities, and the testing process. The FTA alcohol rule requires that employees be provided with additional materials addressing those same issues as they relate to alcohol. Employers must also distribute copies of their substance abuse policies to their safety-sensitive employees.

Third, an employee’s direct supervisor may not be allowed to collect urine specimens or perform a breathalyzer test on the employee concerned. As mentioned above, that task is usually done by a trained collector. Fourth, employees are meant to be given the opportunity to list prescription medications they are taking, typically on their copy of the Custody and Control Form.

Why Is Reasonable Suspicion Testing Necessary?

General workplace safety aside, according to federal guidelines, this kind of drug testing matters in particular to employees whose job functions are safety-sensitive. For instance, a bus driver who smoked pot just before or while he was driving passengers around could be putting his own life and the lives of several others at risk. Employees who perform safety–sensitive functions are responsible not only for their own personal wellbeing, but those of their colleagues and the public as well.

The intent of any drug and alcohol testing programs at workplaces is not to control the private lives of employees, federal guidelines explain. The primary concern is to protect the safety of employees, passengers, and the public.

Studies suggest that many adults who use illegal drugs are employed full or part time, the NIH says, adding that when compared with those who do not use substances, employees who use substances are more likely to:

  • Change jobs frequently.
  • Be late to or absent from work.
  • Be less productive.
  • Be involved in a workplace accident and potentially harm others.
  • File a workers’ compensation claim.

Next up in this series: How to get started with creating drug-free workplaces.

You can find the comprehensive guidelines on controlled substances and alcohol use testing under the Electronic Code of Federal Regulations here.

SAMHSA provides confidential, practical, impartial, and up-to-date information, advice, and support free of charge to employees and their families. You can reach the Drug-Free Workplace Helpline at 1-800-WORKPLACE (967-5752).