FAQs – For Legal and Human Resources

Answers to Legal  and Human Resource FAQs are provided with assistance of nationally recognized legal expert on industrial safety Adele L. Abrams, Esq., Associate Safety Professional (ASP), Certified Mine Safety Professional (CMSP), whose law firm (www.safety-law.com) focuses on safety, health, and employment law nationwide.

Can employers require that employees take the DRUID test, whether pre-employment, regularly, post-accident, for reasonable suspicion, or any other time?

It depends upon the labor status of the company.

Non-union employers can set any terms for hire that do not discriminate against any individuals protected by federal/state/municipal laws such as the Americans with Disabilities Act. Because the DRUID assessment system is NOT a “drug test,” it would not trigger restrictions on pre-employment drug testing (including restrictions specific to cannabis testing). 

Generally, use of DRUID with existing employees would also not trigger restrictions. For existing employees who resist taking the test because they are under contrary contract terms in effect at the time of their hiring, companies may provide them with some additional legal “consideration” (e.g., continuing employment, a monetary benefit such as a gift card, or other benefit) in exchange for signing an agreement to abide by the new employment condition.

If it is a union workforce, any addition of DRUID as a new “term and condition of employment” impacting the portion of the workforce that is organized would have to be negotiated with the union. Employers who fall into this category should include this type of fitness-for-duty assessment on their list of items to discuss when any contracts come up for renewal. 

For individuals covered by the ADA, “reasonable accommodations” should be reviewed for those who otherwise can perform essential functions of the job but might not be able to complete the DRUID assessment due to conditions such as visual or mobility impairment. Such employees may be able to complete some facets of DRUID or may need to be exempted. Employers can assert a “direct threat to safety” defense if hiring a disabled individual poses an objective hazard to their own safety or that of co-workers. Conversely, DRUID evaluation may be utilized as one of the objective assessment tools that could assist a disabled candidate in demonstrating their ability to meet job-related criteria.

It is important to remember that when used for pre-employment, random, post-accident assessment, or for any other reason, the DRUID evaluation is not a legal substitute for the drug/alcohol testing regimen mandated by the U.S. Department of Transportation for commercial drivers, rail, and aviation workers. For these workers, however, it can be used as an additional layer of screening.

If an employee “fails” a DRUID test due to a high baseline score, or by scoring significantly in excess of their baseline, can an employer use the score to evaluate the employee’s fitness for the specific duty to which the employee is assigned, and then adjust those duties, including taking disciplinary measures?

The DRUID assessment score, standing alone, should never be used for disciplinary purposes or to determine “impairment” per se. It is one of a number of tools that an employer can use to determine fitness-for-duty. In addition to potential impairment arising from drug or alcohol use, fitness-for-duty can be impacted by myriad things, such as fatigue and stress, illness, chronic condition, injury, or shift work. Some individuals have a high baseline score while clean and sober, due to age or disability. In such cases, additional evaluation of the individual’s ability to safely perform their assigned duties should be pursued, which may or may not include drug and alcohol testing. 

If a worker has a current test that exceeds their baseline score by more than 3 or 4 points, this is a flag for the supervisor to interface with that worker and to determine if the worker is exhibiting other signs of impairment. The greater the number of points above baseline, the more compelling the warning sign. The company is advised to have the worker re-take the test. If a second test continues to show a similar high score, it is at this point, the company’s usual and customary fit-for-duty protocols should come into play. These may include common sense scrutiny of the worker’s physical appearance, posture, hygiene, speech, odor, and gait, and include conversation seeking to elicit family problems, inappropriate verbal or emotional responses, irritability, memory problems, lack of focus, or lying.

There may be sufficient signs to support “reasonable suspicion” to pursue drug/alcohol assessment following the testing protocols valid in that state. After considering the totality of the evaluations and testing results, the employer can then determine if some sort of discipline is warranted, or if some degree of job remediation is warranted, such as temporary reassignment to a less or non-safety-sensitive position, or continuation of current position with modifications as appropriate.

Because DRUID does not identify the cause of the impairment, a DRUID score, alone, should never be used as the basis to terminate employment.

Are employers violating any federal laws, such as the ADA, ADEA, or OSHA rules, or common state laws, by requiring or making use of DRUID tests?

There is nothing in the Americans with Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA) that specifically references drug/alcohol testing or impairment testing, such as DRUID. 

Where a disabled or older individual cannot meet an employer-specified DRUID score based on the individual’s immutable characteristics, then establishing the individual’s personal DRUID “baseline” score and using that to benchmark future assessments – without disqualifying them for employment where they are otherwise qualified – is the recommended approach. If a candidate cannot participate in DRUID assessment because of vision problems, balance, or other ADA-covered issues, then alternative hiring criteria should be explored if the individual is otherwise qualified to perform the job’s essential functions. Ideally, the DRUID evaluation can be linked to job-related criteria, so as not to be viewed as a facially neutral screening criteria that could have a disparate impact on disabled or older applicants or workers.

OSHA currently has no rules requiring drug, alcohol, or impairment testing in any state or territory. OSHA can, however, hold an employer liable under Section 5(a)(1) of the Occupational Safety & Health Act of 1970 (the “General Duty Clause” or “GDC”) if the employer knows that a worker is impaired and allows them to perform duties that place themselves or other workers at risk of death or serious injury. The maximum OSHA penalty for such violations is $156,259, effective 1/15/2023. 

An employer demonstrating due diligence in preventing the hazard of impaired workers will help avoid citations in the event of a workplace accident. That due diligence can be demonstrated by a number of actions, the greater the number of such actions the better, including using the DRUID assessment system, having trained personnel to recognize impairment, and using drug/alcohol testing where necessary.

Would employers’ use of DRUID give rise to any violation of employment practices liability insurance?

In any insurance policy, the large print giveth and the fine print taketh away, so a universal answer is impossible. Each policy will have its own language, covenants, and restrictions. At this time, we are unaware of any prohibitions on the use of DRUID’s fitness-for-duty assessment under insurance policies – for any purpose, including for hiring purposes, employee assessment during the course of work activities, or when returning to work after a period of absence. On the contrary, because use of DRUID would reduce the number of workers who are unfit for duty for any reason and would lessen the resulting number of compensable injuries and fatalities, this type of assessment should be, and is being, encouraged by insurance. 

If an employee has an accident after testing negative for impairment with DRUID, and a post-accident drug or alcohol test reveals some level of currently impairing drug or alcohol, does the employer have liability?

State workers’ compensation law and tort law (if a third party was injured by the impaired worker) vary widely and are outside the scope of these FAQs. It is, however, important to remember that DRUID is a sophisticated impairment assessment tool, sensitive to even small degrees of impairment; it is not a binary pass/fail drug/alcohol test. It is also important to remember that individuals’ susceptibility to drugs and alcohol vary widely, and that habitual users can develop a tolerance to their impairing effects. This makes it possible for an individual to have consumed an impairing substance and not be, or be only slightly, impaired. A negative DRUID test, or DRUID test showing only slight impairment, coupled with a positive drug or alcohol test is therefore possible. The best line of defense for employers against liability in this instance is for them to consider the totality of the circumstances, including the DRUID score. A trained supervisor, interfacing with workers and trained in safety protocols and able to assess “reasonable suspicion,” armed with DRUID is even more effective.

It is well-recognized that workers can defeat urine and other drug testing methods. No system is foolproof against a worker intent on masking their drug/alcohol use. But the multi-factor screening approach of DRUID is hard to defeat. If the current test score is no more than a few points above the worker’s baseline and there were no other evident signs of impairment, the use of DRUID, coupled with supervisor observations, is likely to be potent mitigating factor as to negligence in the event of any litigation. 

Use of DRUID does not subject an employer to any different or greater legal liability than it already has, whatever its current safety policies and practices. By doing more, by adopting DRUID state-of-the-art safety technology, an employer demonstrates additional due diligence, further mitigating its liability risks.

If an employee has an accident after taking a DRUID test which indicated a degree of impairment that is slight or mild, and the employer has taken this fact into consideration when determining a worker’s fitness for duty, does the employer have liability?

The first issue is whether there were other independent assessments made by the supervisor that indicated the worker was fit for duty despite a slightly or mildly elevated DRUID score, and whether the explanation proffered by the worker for the abnormal score (e.g., fatigue, switch to a new shift, depression, off-job stressors, or over-the-counter medication use) was acceptable to the employer. Another consideration is how far from “normal” the DRUID score was, and whether the test showed deviation when repeated on the spot, or whether the deviation occurred consistently or repeatedly over a period of days or weeks. Was rest or reassignment considered? Were the worker’s duties safety-sensitive, and how safety sensitive were they? There’s difference, of course, in risk between working at a desk and working on scaffolding. How was the situation documented in real-time by the screening supervisor? The root cause of the accident would also be a consideration, as impaired individuals can be injured as the result of actions by third parties or conditions outside of their control, where impairment would not be a causal factor. 

The bottom line is that there could be liability if a worker had a repeatedly elevated score, that score deviated significantly above baseline, no other evaluation occurred, and the individual was permitted to work in a hazardous position. Where there are multiple significantly elevated DRUID scores, the prudent action would be to conduct an additional assessment before allowing work to commence, including face-to-face evaluation by a trained supervisor. If no drug/alcohol impairment is present and the deviation is due to personal health factors but still is deemed to interfere with the safe performance of duties, temporary reassignment to a non-safety-sensitive role is recommended.