I. INTROOUCf'ON The problem of substance abuse in the workplace is unquestionably costly to bolh employers and their employees. For example. in a review on private sector drug路lcsting, Jeffery Olsen. observed that: Is]ubstance abuse reponedly costs employers close to 100 billion annually due (0 lost productivity. increased absenteeism. and dmg related injuries. A recent Bureau of Labor Statistics survey of private sec'or employers in a variety of industries who tested their employees and applicants for drugs showed some frightening results: of the 950.000 eurrem employees tes'ed, abou, 9% 'eSled positive: of the nearly 3.9 million job applicants tested, 12% had posi'ive test
results from drug-testing. For example, according to a 1990 study. 77% of drug-testing employers repon that drug testing has improved the quality of their applicants. 63% repon that
results. I (emphasi added) In 1993. the Secretary of Health and Human Services reponed that losses in produetivi,y caused by alcohol abuse alone may have been as high as 527 billion in 1985 equating to 39 pereem of the total economic cost of alcohol abuse which was estimated to be approximately 570 billion annually2 Likewise, productivity lost in 1988 as a result of drug abuse has been eSlimated at approximately 57.2 billion annually and 533 billion for alcohol abuse 3 Recoupmenlof these losses would undoubtedly be beneficial, resulting in lower prices for products caused by
work-place, Arkansas employers have proved to be no exception to the general trend of implementing drug/alcohol free workplace policies which are enforced in pan by drug/alcohol test-
they have asafer work environment, 56% repon that they have fewer drug problems in the work-
place and 54% repon improl'ed employee morale.6 On the other hand, less than one-founh of drug-testing employers repon problems with having implemented a drug-testing program. Of
the problems reponed, Union challenges were the most prevalent (23%). followed by problems caused by connieting interpretations of company policy (21%) followed by employee resentmem (20%)7
In the environment of increased awareness of the costs extracted by substance abuse in the
relationship and effect it has with workers' compensation practice in Arkansas. DRUG & Al.C0I10l. Tf:snNG BY PRtl'ATE
and employee benefits. However, even lhese
benefits pale when compared 10 savings which would be realized in tenns of employee health, safety and enterprise which would be gained by
Currently, no statute or set of regulations exists in Arkansas which governs the implemen-
Moreover, there exist few reponed Arkansas
with the company. The employer's policy prohibited the employee from possessing or being under the innuenee of alcohol or drugs while at work. '3 The policy defined "under the innuence" as meaning "impaired" or "having a
detectable level" of alcohol or drugs in one's
'0
at the time the program was implemented,
employees were given the oplion of signing an
reported cases concern unemployment insurance
of employment or being diseharged. In upholding the employer's policy. the Coun found thaI: Idlue to the dangerous nalUre of the drilling
has made progress. Thi progress has been espe-
claims. The Coun of Appeals has reviewed one workers' compensation case. but this opinion
the pan of the public about the risks and costs
was not designated for publication 9 Therefore, in the interest of clarity and in an anempl 10 avoid confusion, the following di.scussion is lim-
fray by implcmenting drug/alcohol free workplace policies. The "prime mover" for this movement was the Drug-Free Workplace Act of 19884 which applied to federal contractors.
ited to published opinions of Arkansas Appellate Couns. Funhennore, thi inquiry is necessarily
Though the act did not require employers to implement drug/alcohol testing, the potential
implied, to implement drug/alcohol free workplace policies or to implement drug/alcohol 'esting. 10 However. the general implications of
Though specific experiences vary, priva'e employers generally repon overall positive
icy as a condition of his continued employment
cases which address the issue of drug/alcohol testing in the work-place. In fact. all of the
cially realized in an increased awareness on
sanctions contained within the act led many employers to conclude that such testing was necessary for their protection. S
abide by the employer's drug free workplace pol-
ensure the safety of drilling crews:' I5 Moreover.
Arkansas law with respec' to drug/alcohol testing in the workplace by private employers, and what
EMI'I.OI'F.RS IN ARKANSAS
associated with substance abuse. Moreover. many private employers have entered the
to enforce its nationwide drug-free workplace policy. The employee in that case had agreed to
drug/alcohol tes'ing under such policies.8
following materials is to provide the practitioner with basic infonllation concerning the status of
II
laws, regulations and sanctions coupled with the federal government's call for a "war on drugs"
In Grace Drilling, the Coun of Appeals upheld an employer's use of random drug ,esting
tation of drug/alcohol free workplace policies by private employers or set S1andards for
ous issues raised by private employer drug-testing has been slow to develop. The purpose of the
morc jobs economy-wide, and increased wages
many years. Tougher state and federal
vate employers implement and administer such
testing. The Arkansas Coun of Appeals answered this question in Grace Drilling Co. v. Director. 12
bodyt4 As a result of a random drug sereen, 'he employee tested positive for marijuana and was diseharged pursuant to the employer's drug policy. The employee subsequently applied for and was awarded unemployment benefits by the Arkansas Employment Security Division which found for the employee principally because the employer failed 10 establish that the employee was actually intoxicaled at work. However, on appeal the Coun of Appeals reversed. In its decision. the Coun of Appeals noted that the employer had inSlituted a national safety program which involved drug sereening. According to the testimony in the record, the program was instituted due the "high aecidem rate and risk factors relating to the nature of the loill drilling business and Ifroml a desire to
ing. However, Arkansas law concerning the vari-
lower production COSIS, higher profits resulting in
lowering substance abuse in the work-place. The social and economic coslS associated with substance abuse have been recognized for
practice. I I The first question to be addressed with respect 10 private employer drug/alcoholteSling i whether and under what conditions may pri-
limited to private employers who are not under any governmental compulsion. expressed or
these cases on the fUlUre of drug/alcohol testing, whether initiated by private employers or by government authority, will be substantially the same regarding their effect on workers' compensation
agreement to abide by the policy as a condition
industry it was not unreasonable for the
appellant to implement a drug policy. The issue of drug testing in the work environment presents public policy considerations, the import of which cannot be minimized. 16
Given that the policy itself was found to be reasonable, the Coun denied 'he employee unemployment benefits on the basis that the evidence established that he had failed to abide by the plain tenns of the employer's drug/alcohol policy by failing a random drug test which was a condition of his continued employment. For this
reason. the Coun concluded the employee was discharged for "misconduct" relating to his
II
n, !rluID tao)"
1'.11 199i