Drugs, Drug Testing, and Your Union

By EST Wayne Jennings with assistance from SSMRC Legal Counsel Jay Youngdahl

From time to time in our union, issues involving drugs and the workplace come up. These issues affect our members, our contractors, and the end users–everyone that depends on our support within our Council. These issues even have an affect on our families.

Sometimes these issues involve a failure of a drug test, whether this is a legitimate failure of fitness for duty (often for marijuana) or a positive test for a prescribed medication. Either of these situations is a negative for our ability to supply our contractors and end users with a professional work force.

Sometimes a test will show a “false positive.” Our member usually contests these results. Then the issue arises about the ability of our members to perform safe, professional, productive work. Will they gain access to a facility while taking prescription medication they have been prescribed by a doctor? This often leads to delayed entry to a site or missing a short outage all together. Our member is left without employment and the people that depend on us to supply a professional workforce are left shorthanded.

The Union will always fight for your rights, but in the area of drugs and drug testing there are some hard and fast rules that apply to all. Like you, the Union is bound by these rules as well. The purpose of this article is to survey the landscape so you know your rights and obligations in this area. The area is a patchwork of laws, regulations, and rules, which slightly vary state to state and job to job. But some things are always the case, and here are some things that you should know.

1. Every worker has the obligation to be able to work without impairment from drugs of any kind (illegal drugs or prescribed medication) at the workplace
2. Every facility or employer has the right to enforce a drug-free workplace, free from illegal or legal drugs. Please be aware that just because certain things are legalized in a few states (marijuana) does not mean that a facility owner nor an employer must allow it. And, just because your doctor prescribed a drug does not mean that neither a facility owner nor an employer must allow you to work with it in your system.
3. While there is no direct federal law on workplace drug testing, most states allow it with some level of protection for the disclosure of the results. Most collective bargaining agreements allow drug testing but often provide some levels of protection for how it is performed. For example, Local 216’s contracts provide that “an employer may require an existing employee to take a drug test. All results shall be confirmed by an outside source before an employee is terminated (This is not the case for a pre-employment screening).”

   You have a right to privacy of the results, but there are exceptions to your privacy. The company and the Union have the right to know the results. The results must be shared with the employer so a determination can be made if you are employable. The results must also be shared with your Union so a determination can be made if you were fairly treated.

4. Our union apprenticeship programs generally require a drug-free environment. Training must take place in a safe environment, and is always done with the betterment of journeymen and apprentices in mind. Most apprenticeship programs have similar language to a drug policy, which mandates drug testing for “cause.” The policy explains why: “The Fund will engage in drug testing of its participants for the purposes of education, prevention, and deterrence. The prevention of chemical use and dependency is preferable to the treatment and management of its consequences, and therefore prevention is in the best interests of both the participants and contractors.”
5. If you have been found to have used drugs at any job or had illegal drugs or none compliance prescribed medication in your system on the job, the penalties can be severe. They range from a permanent ban from working at the facilities and for that contractor, to a requirement of the worker to enroll, at their own expense, in a drug/alcohol counselling program. Upon completion of the drug/alcohol program, the worker must submit documentation, a negative drug test (in some instances a hair follicle test), and wait a specified time before being allowed to return to work for that facility owner or contractor. In some instances, there is a permanent ban on the first offence and in most instances there is a permanent ban on a second offence.

So what should you do?

Do not use drugs or alcohol on the job. The safety of you and your co-workers cannot be compromised.

Do not come to work with drugs in your system, whether illegal nor non-compliance prescription medication. Remember that some drugs, such as marijuana, stay in your body for weeks.

If you believe you have received incorrect results from a drug test or have been wrongly banned from a job site, contact your union immediately.

What can you do?

If your doctor prescribes medication for you, ask him or her if taking it will impair your ability to work safely. Then, check with your Union or contractor to see if that drug is a problem for the contractor or customer. If there is a problem, you have the right to ask your doctor to suggest an alternative treatment. Just because a doctor says you need a certain drug does not mean that the customer has to let you work at their facility with it in your system. Most, if not all, facility owners and contractors rely on the advice of Medical Review Officers as to whether or not to allow someone to enter employment with their company at their facility.

You should know better than anyone else if you are fit for duty. If you are not, you should consider with great importance whether you want to take the chances, and the consequences, of failing a fitness-for-duty exam. A failure will affect you, your family, and your Union. Please remember that the customer, your employer, and the facility owners can always find an alternate workforce. If we cannot supply a safe, professional, productive, product, they most likely will.

In closing, ask yourself this. Would you purchase a dangerous, unskilled, nonproductive, product or do you want to spend your money on a product that has value? Our value is being a safe, professional and productive workforce that shows up on time, ready for work. We promise to deliver on time–every time–with no delays due to safety issues or poor craftsmanship. So I ask that you take ownership and let’s be the best workforce the industry has ever seen.

The union will always fight for your rights, but in the area of drugs and drug testing there are some hard and fast rules that apply to all.