[R]ep. Eileen Dickinson hopes this is the year that lawmakers decide to allow employers to randomly test for intoxication by alcohol or drugs.
Vermont employers have been barred since 1987 from randomly testing workers. Employers are allowed to test applicants after a conditional employment offer has been made, and also if there is probable cause of drug use.
But they can’t test an employee if they think the person is under the influence of a substance. And employers — and Dickinson — say that the “probable cause” wording makes it effectively impossible to test workers after they have been hired.
That creates problems for companies like Kubricki Construction of Wilton, New York, which has workers in several states including 100 in Vermont. In New York, the firm randomly selects 5 percent of the workforce to test every quarter, said Brad Simon, the company’s director of corporate safety.
But at a Kubricki job site in Vermont recently, a worker told his employers he was under the influence of alcohol, and the company couldn’t test the person, Simon said.
If workers appear to be under the influence of drugs or alcohol, “we just send them home,” Simon said.
Dickinson, a Republican from St. Albans Town, is the lead sponsor of legislation that would amend the state’s drug-testing law to let employers test if they had “reasonable basis” to believe a worker was under the influence of a substance on the job. The employer could also test if the employee caused an accident on the job that resulted in damage.
According to the bill, “reasonable basis” means “evidence drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience.”
Dickinson has supported similar legislation in prior years and it hasn’t had a hearing. She doesn’t know if the bill will be discussed in a committee this year either, but she said she thought that the recent legalization of marijuana might give it a chance.
“I think it’s the appropriate time to be including this, with the legalization of marijuana and the issue of other drugs,” Dickinson said Tuesday. She said she was moved to sponsor the bill again after she learned that the Associated General Contractors and the Vermont Chamber of Commerce had identified random drug testing as one of their policy goals.
The American Civil Liberties Union of Vermont opposes such testing, saying urine analysis might reveal other personal details about the worker such as treatment for epilepsy, depression, diabetes or a heart condition. Such testing can also reveal whether a worker is pregnant, said executive director James Duff Lyall.
“Though we assume the proposal is well-intentioned, without adequate due process protections, workplace drug-testing policies can raise serious privacy concerns,” he said. “Specifically the drug-testing process subjects individuals to an intrusive and degrading search.”
He added that a positive test doesn’t prove the person is impaired or intoxicated at that moment.
“It only indicates that a person may have taken a drug at some time in the past,” he said. “For all of these reasons, policymakers should proceed with caution before making changes to existing policy.”
Simon said he has observed that alcohol is a more common problem in the workplace than marijuana or other drugs.
“In New York, I have seen alcohol as being a major player,” he said. “Last season, we had a bulldozer operator back a piece of equipment into a dump truck, and we did our post-incident drug and alcohol screen and he tested positive for alcohol at the legal limit in the afternoon.”
Allowing random drug testing might serve as a deterrent, said Matt Musgrave, the head of government affairs for the AGC.
“Knowing probable cause is the standard isn’t enough of a deterrent for people,” said Musgrave.
He added that if an employee fails a drug or alcohol test on the job, they aren’t automatically fired.
“Under state law, they go into up to a 12-week program to seek treatment,” he said. “In today’s world we’re living with an opiate crisis, numerous other drugs in our state, and that’s an opportunity for us to potentially step in and help people who are in trouble.”
