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May 26, 2011
Pre-Employment Drug Testing: DOT and Zero Tolerance Policies

In a Employer Resource Institute webinar entitled "Drugs and Alcohol in the California Workplace: How to Keep Them Out and Discipline Policy Violators," Laura E. Innes, Esq., of Simpson, Garrity, Innes & Jacuzzi, PC in San Francisco explained that drug testing may not always be the answer to questionable behavior.

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  • When you have reasonable suspicion you probably also have "cause" for performance management and/or discipline
  • Straight forward discipline for inappropriate workplace behaviors is much less risky from a legal standpoint than drug testing
  • When doing performance management, don't ask about health. Addressing this as a potential reason for poor performance can also bring legal risk

The Department of Transportation (DOT) has its own regulations relating to drug and alcohol testing.

  • Employers covered by the DOT regulation are required to have DOT-compliant drug and alcohol testing policies, practices and procedures
  • Generally, DOT regulations cover safety-sensitive transportation employers and employees. Each DOT agency and the United States Coast Guard have specific drug and alcohol testing regulations
  • The DOT regulations do not address hiring, termination or other employment actions -- except references
  • These decisions are solely the employers, which may be based on company policy and/or any collective bargaining agreements

It is acceptable to have a zero tolerance policy and state that violators will be subject to disciplinary action to up and including termination from employment. If you have company parties where alcohol is served or sales persons who may have drinks with clients, carve out an exception to the zero tolerance policy. If drinking is authorized, it is acceptable to require that employees must remain sober and in control at all times.

Laura Innes, Esq., is an attorney with Simpson, Garrity, Innes and Jacuzzi, PC in San Francisco (www. sgijlaw.com). She is engaged exclusively in the practice of labor and employment law. Her practice combines preventive counseling for clients with civil and administration litigation defense. She has practice extensively in state and federal court and before state and federal agencies.

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