It is only a tiny minority of employees who are found out for taking illegal (or recreational) drugs during their term of employment. The list of banned drugs include Marijuana, Cocaine, Opiates, Amphetamines, etc. Excessive use of alcohol can also be in conflict with terms of employment. The Medical Review Officer (MRO) collects samples of urine, blood, etc from employees (or candidates) and performs comprehensive exams in a laboratory to screen for drug usage. Once tell-tale traces are found out the employeee is liable to legal prosecution.
The most extreme action that an employer can take is to terminate employment or refusing to hire (as the case may be). The scope of actions on part of employers are provisioned in the Drug-Free Workplace Act of 1988, promoted and passed by President Ronald Reagan during his final year of presidency. There are other federal and state regulations which allow termination only if it is inevitable. On detection of an employee drug problem, employers are required to
“encourage or require employers to allow offenders to choose a substance-abuse treatment program in place of employment termination. For example, instead of outright firing you, your employer might ban you from performing safety-sensitive duties until you successfully complete a course, counseling or treatment program and then pass a return-to-duty drug test. That’s particularly so if you work in an industry regulated by the U.S. Department of Transportation (DOT) or for a company that follows Department of Transportation workplace drug testing rules.” (www.employeeissues.com, 2011)
Testing positive for drugs have a whole array of disincentives for the guilty. For example, such employees cannot claim unemployment benefits. Provisions under CORBA would deny the guilty prolonged health-insurance coverage during the recovery stage. The state workers’ compensation law is also unfavorable to those found guilty, for it denies any workers’ compensation benefits. All this is not to say that the laws are favored toward employers. For example, however grievous the drug-abuse and however malefic its effects were on the organization, employers still cannot get the guilty arrested, unless the drug-abuse happens in the premises of the organization. In the latter scenario, employers have a right to call up police and get the culprit arrested. Since some pertinent state laws are ripe with loopholes, the defending employee has a good chance of avoiding punitive action; and so employers are unlikely to get pecuniary compensation through their lawsuits.
The options for prosecution available for employers is also dependent on the type of organization. Since employee drug-screening programs were first initiated in Federal government agencies, law and legal precedents in this domain are quite large. It wasn’t until the implementation of White House Drug Control Strategy directive in 1989 that private sector organizations were brought under the purview. Screening for drugs and subsequent punitive measures upon those testing positive are more streamlined in Federal agencies. While private sector employers can exercise discretion in the kind of action they can take, they can also be held accountable for leniency bordering on recklessness. As a result, the number of companies making drug-testing a regular procedure is steadily increasing. But the reality is that only a miniscule percentage of total tested employees show up positive, questioning the necessity for incurring these heavy costs.
Cathryn Jo Rosen; John S. Goldkamp (Spring 1989). “The Constitutionality of Drug Testing at the Bail Stage”. The Journal of Criminal Law and Criminology (1973–) 80 (1): 114–176.
Drug Testing in the Workplace, Workplace Drug Testing Eployee Rights and Concerns, retrieved from <http://employeeissues.com/drug_testing.htm > on 7th February, 2011.