In a recent webinar sponsored by TalentWise, presenters from two drug-screening companies, FightReady and eScreen, shared their advice. FightReady automates risk mitigation and compliance with drug and alcohol laws, while eScreen specializes in drug screening and physical exams.

What are the biggest mistakes employers make?

FightReady’s co-founder, Bill Judge, believes the following faux pas are the most common:

• Having a policy, but keeping it in a drawer and never looking at it
• Following the U.S. Department of Transportation’s (DOT) procedures for employees who aren’t regulated by the DOT
• Enforcing a single nationwide policy
• Failing to train employees and managers

Consider the following statistics: According to a study conducted by the Society for Human Resource Management, 84 percent of respondents already have or plan to have a drug-screening program. But at the same time, it is estimated that 66 percent of people who admit current drug use are employed. The experts stress that this has a serious impact on workers’ compensation costs for employers.

In general, most employers can—and should—conduct prehire drug screening. As for posthire screenings, that’s more complex. As Judge points out, there are many state-specific laws—he estimates between 550 and 600—that affect when and how employers can test existing employees.

Judge cited some examples of ways in which employers got in trouble. Sample cases from Connecticut, Oklahoma, Minnesota, and Iowa all found that employers failed to conform to state requirements for reasonable suspicion as a reason to test. In Minnesota, it is illegal to fire someone for a first posthire positive drug test; you may do so only for a second offense. In Iowa, it is illegal to ask an applicant to pay for his or her own prehire drug test.

However, a number of states make it easier for employers to fight workers’ comp claims, using what’s known as the “intoxification defense.” That is, if you test an employee after an accident and determine that he or she was using drugs or alcohol—provided you test properly—some states will accept a presumption of intoxication.

What drugs should you test for?

One safe bet, Judge and Laura Weber, a vice president at eScreen, pointed out, is to follow DOT’s testing procedures if your business is regulated by that agency. It is also a good idea to follow DOT’s 5-class recommended test (for opiates, amphetamines, cocaine, cannabinoids, and phencyclidine) even if your employees are not DOT-regulated. Some employers run afoul because they use out-of-date drug lists containing some drugs that are no longer made. More important, they tend to list drugs for which employees can obtain valid prescriptions, such as methaqualone, methodone, benzodiazepines, and barbiturates.