America’s opioid epidemic continues to create economic repercussions and drain companies’ resources. No sector has been hit as hard by substance abuse as the construction industry.
The situation has been complicated by the worsening shortage of workers even as construction spending runs at full throttle. The pressing need for people may tempt some employers to look the other way if they detect signs that workers are under the influence on the job, but that only heightens the risks (and resulting costs). Substance abuse on and off the job poses a safety risk to the workers themselves and others, leaving employers responsible for more disability and workers’ compensation claims, along with lost productivity.
How extensive is the issue, and how can employers in the construction industry most effectively counter it? The following three experts discuss drug testing policies in the context of today’s regulatory environment and outline best practices for training and safety.
- Phil Casto, senior vice president of risk services and a specialist in the construction industry, HUB International.
- Mingee Kim, senior vice president and workforce productivity practice leader for risk services, HUB International.
- Kathryn J. Russo, attorney with the Long Island, New York, office of Jackson Lewis, P.C., and HR specialist in drug testing protocols for the construction industry.
How significant is the substance abuse problem in the construction industry?
Casto: A quarter of construction industry workers admit to using illegal drugs. Alcohol is still an issue, but today, drugs are more front and center: marijuana, cocaine, ecstasy, meth, heroin and opioids. That sets the stage for more risk in an already dangerous environment. One out of every five of each year’s 5,000 U.S. workplace fatalities is a construction worker.
And injuries play a role in the drug abuse problem; the industry’s spend on opioids initially prescribed for pain is 5% to 10% above all others.
The risks for the industry are obvious, but talk a bit about the impact.
Kim: Let’s put safety to one side for a moment and look at another way substance abuse disrupts a business: higher rates of absenteeism. There are direct costs such as medical care, short- and long-term disability, and workers’ compensation.
Plus, employers are paying a huge cost in terms of lost productivity and more, from overtime to compensate for the shortfall in people to higher turnover. Plus, quality suffers and business can be lost as a result.
Given the construction labor shortage, are some employers reluctantly turning a blind eye to the substance abuse issue?
Casto: Negligent hiring and retention are real concerns in this environment—when an employer knows or should know that an individual is so incompetent or unfit as to pose an unreasonable risk of harm to others—as well as general liability issues arising from accidents caused by employees using drugs or alcohol at work.
It makes drug testing policies and safety training more important than ever, but it’s also more complicated than ever. More states are legalizing medical and recreational marijuana, and some of those laws make it harder for employers to take action against medical marijuana users.
What are some key aspects of drug testing rules that employers need to be aware of?
Russo: It is complicated because, for starters, there’s tremendous variation in drug testing laws from one state to another. Plus, the Department of Transportation mandates a drug and alcohol testing policy that employers are required to distribute to every CDL driver they employ. A DOT-compliant policy cannot be handed off to non-DOT-regulated employees, as its requirements might violate state and local laws and leave employers vulnerable to litigation.
Ensure that you have drug testing policies for both DOT and non-DOT-regulated employees that have been reviewed for compliance with applicable laws. In addition, “reasonable suspicion” training is mandatory for supervisors under DOT rules, and if not required, strongly recommended for non-DOT supervisors. It takes training to know what to do when dealing with a potential drug situation.
Employers whose testing policies don’t comply with applicable laws can face stiff monetary penalties, as well as potential lawsuits from applicants or employees.
One way that non-DOT employers can guard against the downsides when they are having trouble finding qualified applicants is by including a “last chance” agreement in their policies, versus termination for drug test failure. This would require an employee who tests positive to be evaluated for a potential substance abuse problem and to obtain recommended treatment before returning to work.
What should construction employers consider when it comes to workplace safety and substance abuse?
Russo: What’s really important is proper, comprehensive training. Supervisors need to understand the purpose of the drug and alcohol policy, how to make reasonable suspicion determinations and document them, how to handle an employee’s disclosure of prescription medication use or addiction issues, and the importance of confidentiality in dealing with these issues. Employees need training, too, and not just on what the policy covers.
They need to be encouraged to get help for abuse and addiction issues before their jobs are jeopardized, and be made aware of what benefits are available to them. Employees who are in need of substance abuse treatment need support because substance abuse is an illness. If you do it right, they’ll emerge as better and more productive employees in the end.
