Don’t Let Legal Write Your Policy

You are probably adopting a substance free workplace program with a specific set of goals in mind. Your legal department or legal counsel has one goal: to protect you from liability. When tasked with writing a substance free workplace policy, their approach is to ensure that it complies with any local, state or federal regulations; is in compliance with employment laws; and has a low probability of being successfully challenged in court in response to any adverse action resulting from enforcing the policy. These are all very important points to consider when adopting a new substance free workplace policy, but they probably don’t address your goals in implementing a substance free workplace program or the practical considerations necessary to make it successful. Here are a few of the reasons why you shouldn’t ask legal to write your policy;

  1. They tend to avoid specific language. Policies written by an attorney often include vague language such as “up to and including termination,” “on a case by case basis,” “at the discretion of Human Resources.” In addition, they tend to allow for any type of drug testing, without committing to any, “may be asked to submit to pre-employment, random, reasonable suspicion, or post-accident drug testing.” The logic is that the business is able to do anything or nothing and still be in compliance with their policy. The problem is that isimpossible to influence behaviors without specific expectations and consequences. The best case scenario is that the policy is ineffectual; the worst case scenario is that the policy is applied discriminatorily.
  2. They don’t have specific expertise. Most lawyers do not have expertise in what makes a substance free workplace program successful. They don’t know the ins and outs of drug testing, including what types of tests are most appropriate, effective and accurate. They don’t know what resources or workplace programs are available to assist employees with substance abuse prevention or treatment. They aren’t experts in what types of workplace interventions are successful at addressing substance abuse issues. They may write a policy that states the desired end result, but it won’t include the components necessary to get there.
  3. They don’t understand the practical issues necessary for policy implementation. There are seemingly endless practical details that need to be considered before adopting a new substance free workplace policy. Whether it’s finding a drug testing provider who is able to accommodate third shift or deciding if an employee is permitted to work while awaiting the results of a drug test. The policy also needs to take into consideration the structure of the company, who is able to take on which roles and whether there is adequate staffing at all times to implement the policy as written. This list could go on and on, suffice it to say that whoever is writing the policy should have a clear picture of what it will look like in practice.

Although legal shouldn’t be writing your new policy, it is crucial to have them review any new policy. They may not have expertise in substance free workplace programs, but they do have expertise in employment law and any applicable drug testing laws. Any new policy or program should be a joint project between a substance free workplace professional, legal counsel, and people within your organization who have a clear picture of your goals and operations. If you need a substance free workplace expert to help you write your policy, please contact us.


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