Tuesday, February 17, 2015

Does My Company Need to Administer Drug Tests to Get a State Contract?

Companies that do business with the State of Illinois know that they must jump through a lot of hoops in order to obtain a state contract. Among other requirements, an affirmative action policy, a policy against unlawful discrimination, and a policy against sexual harassment all must be in place before a company can receive a contract from the state. However, one often overlooked requirement is the establishment of an anti-drug policy, which must include drug testing. Both the Substance Abuse Prevention on Public Works Project Act (“Substance Abuse Act”) and the Drug Free Workplace Act require employers bidding on state contracts to implement anti-drug policies.

The Substance Abuse Act (820 ILCS 265/1, et seq.) prohibits employees from possessing or being under the influence of drugs or alcohol while working on a state contract. The Act requires all employers receiving state contracts to implement a drug testing program. This program requires employee to take urine drug tests randomly, as well as prior to their hiring. Blood testing may only be done after an accident. The cost of this testing must be paid for by the employer.

Moreover, if an employer suspects that an employee may be under the influence of drugs or alcohol at work, the employee must take a drug test. If the employee fails the test, or refuses to take it, he must leave the work site, and may only return once he has passed a drug test and enrolled in a substance abuse prevention program.

The Illinois Drug Free Workplace Act (30 ILCS 580/1, et seq.) requires any employer with at least 25 employees receiving a state contract to create an anti-drug program. As part of this program, the employer must publish a statement notifying employees that it is illegal to possess, manufacture, or be under the influence of drugs at a worksite. The employer must also develop a drug free awareness program, which informs employees of the dangers of drug abuse, the employer’s drug free workplace policy, the availability of drug counseling and rehabilitation programs, and the penalties the employee will suffer for being caught using drugs.

If an employee tests positive for drug use, the employer minimally must require the employee to engage in a drug counseling, treatment, or rehabilitation program. The employer must also notify the state agency providing the contract that one of its employees was using drugs. Nothing in these Acts, though, precludes an employer from implementing a more restrictive policy on drug and alcohol use, including a zero tolerance policy. The employer must at all times make a good faith effort to maintain a drug free workplace.

Failure to properly comply with the Substance Abuse Act or the Drug Free Workplace Act may lead to denial or revocation of a state contract. As a result, it may be worth having an experienced attorney review your drug and alcohol policies to ensure that they comply with both of these Acts.