ACVC 2019: Spilling the tea about drug testing in veterinary medicine

October 17, 2019
Maureen McKinney, Associate Editorial Director

The laws around drug testing in the workplace can be confusing, especially in light of rapidly changing legislation around marijuana use. If youre thinking about implementing a drug testing policy in your veterinary practice, there are several things youll need to keep in mind.

Africa Studio/stock.adobe.comCharlotte Lacroix, DVM, JD, began the first of her 2019 Atlantic Coast Veterinary Conference (ACVC) lectures by acknowledging that veterinarians didn't choose this profession because they wanted to deal with human resources. Nevertheless, she said, “we need to embrace it and make sure we're following the applicable laws.”

Although Dr. Lacroix touched on a wide variety of important employment topics during her lectures, here we focus on the issue of drug testing in the veterinary workplace.

Today's drug landscape

The drugs with the potential to cause the most issues in a veterinary practice are marijuana, opioids and heroin, said Dr. Lacroix, who owns Veterinary Business Advisors, Inc. in Whitehouse Station, New Jersey. Not only are opioid and heroin addiction numbers through the roof-about 130 Americans die every day from an opioid overdose, she said-but the legalization of medical (and, in a growing number of states, recreational) marijuana is on the rise throughout the country. This increase may lead to greater instances of a practice owner or manager suspecting an employee of using drugs on the job.

The many risks associated with drug use in the workplace, from increased tardiness and absenteeism to theft, lost productivity and low team morale, are amplified in a veterinary setting because employees have easier access to both controlled and noncontrolled substances intended for patients, Dr. Lacroix said. She also pointed out that the opioid and heroin crisis has affected some areas of the country more than others, so individual practices should know the relative risk in their state so they can prepare accordingly.

Protecting your practice

To best protect your hospital, employees and clients, every practice should have a formal written policy against employee substance abuse, Dr. Lacroix advised. Keep in mind that any policy you implement must be applied uniformly within your practice, she said. In other words, you can't single out just one employee for drug testing because you're looking for a pretext to fire that employee. “Even if your policy was not intended in any way to discriminate,” she said, “if it has a discriminatory impact it will be deemed to be discriminatory.”

Every drug- and alcohol-abuse policy should include a statement about why the company established the policy, what precisely is expected of employees and what the consequences are for policy violations.

You'll need to decide who and when you're going to test, for what drugs you're going to test and the logistics for the test itself. Employers have several options for the timing of drug testing:

Before employment: Test all or certain classes of employees (e.g., just the doctors and technicians) prior to hire

On reasonable suspicion: Test specific employees only based on actions or behaviors

Post-accident: Test employees following an accident that occurs at the practice

Post-treatment: Test certain employees following time spent in a drug or alcohol rehab facility

Periodic: Test all employees at a certain time every year

Random: Test only certain employees chosen at random.

It's complicated

Ultimately, when you're developing a drug testing policy-or any policy for that matter-you need to think about what you're trying to achieve, and your choices should be made always with job performance top of mind. “If you drug-test someone whose job performance is fine and they come up positive for marijuana, what are you going to do?” Dr. Lacroix asked the audience, noting that it's not likely in today's hiring climate that you'll want to fire an employee who is good at their job.

Dr. Lacroix believes, as it relates to this topic, that "as employers, it's really none of our business what our employees do on their own time,” she said. “We shouldn't care as long as they are performing their job satisfactorily.”

With rapidly changing laws throughout the country, it's important for employers to be familiar with the drug laws within their state, Dr. Lacroix said, including the legal status of marijuana use and drug testing policies.

How can states circumvent federal law?

Rapidly changing marijuana laws can be a source of real confusion for practices, Dr. Lacroix acknowledged. If the federal government considers marijuana a Schedule I drug that is illegal for any person to use, how can some states say it's OK and pass their own laws?

In the case of marijuana, she said, the federal government has taken a hands-off approach. “This is known as the doctrine of enforcement discretion,” she explained, “which means the federal government can decide whether or not it will enforce a law and to what extent that law will be enforced.”

Enforcement discretion is a doctrine the government often uses when an issue is in transition, Dr. Lacroix said, and marijuana certainly falls into that category.

Because the federal government considers the use of marijuana illegal across the board, employees will not be protected by federal laws such as the Americans with Disabilities Act. But some states have passed laws protecting medical marijuana users. Keep in mind that these laws all pertain only to medical marijuana use; there is no protection for recreational use at work in any state. And no state protects employees who possess or use marijuana for any reason while on the clock.

Simply having a prescription for medical marijuana does not give an employee the right to use the drug at work, to be impaired at work or to compromise the safety of others at work. A number of states have passed laws that restrict employers from firing employees who use medical marijuana unless the employee is shown to be impaired on the job. In addition, many states limit when companies can test their employees, and others protect employees who fail an initial drug test.

Enforcing your policy

Employers should train their managers to look for signs of intoxication and how to document infractions properly. This means creating a detailed account noting the date and time of observed behaviors such as slurred speech or stumbling. If a drug test confirms marijuana use, in order to take action the employer must have documentation that the employer was impaired on the job.

The bottom line

Dr. Lacroix's admittedly conservative bottom line when it comes to drug testing at work is to test deftly. “You can test pre-employment, post-accident or when someone has been in rehab,” she said, “but otherwise stick with testing only on reasonable suspicion in most cases.” Your primary consideration when developing a drug policy in your practice should be job performance.