Weeding Out: Drug Testing Woes for Unionized Workplaces
In 2022, union organizing soared as employees of certain Amazon, Chipotle, Apple, Trader Joe’s, and Starbucks locations voted to unionize. With support of unions at an all-time high, employers may be so focused on a pending union vote or upcoming collective bargaining agreement negotiations that reviewing drug testing policies for compliance with Federal, State, and local laws may be on the back burner. But marijuana use by employees remains a problem even for unionized workplaces and, in fact, becomes a more complex issue to address when collective bargaining agreements are involved.
Employers of unionized workplaces that do not want to see their drug testing programs go up in smoke should consider these tips when implementing drug-free workplaces.
Consider whether the company has a duty to negotiate with the union
Under Federal law, employers of unionized workplaces are required to bargain with unions in good faith regarding wages, hours, and other terms and conditions of employment, such as drug testing which typically affects a term or condition of employment. As a general rule, a unionized employer first must negotiate with the union before changing terms or conditions of employment for existing employees represented by the union.
Failing to bargain when legally required to do so could result in the union taking economic action (a walkout, boycott, etc.) or filing an unfair labor practice charge against the employer. If the union prevails with such a charge, an employer may be required to reinstate employees with backpay who were terminated pursuant to a drug testing policy that was not properly negotiated.
However, in some instances and depending on the language of the collective bargaining agreement—including any management rights clause—an employer may be able to unilaterally implement or revise a drug/alcohol policy. Conversely, in other instances, a unilateral change could be an unfair labor practice. Therefore, employers seeking to roll out new or revised drug testing policies should first obtain a legal opinion to determine whether they are first required to bargain with the union about such changes.
If required to negotiate a drug/alcohol policy, watch your language!
The language of a negotiated collective bargaining agreement will govern a unionized workplace, including permissible adverse actions an employer may take against employees testing positive for marijuana. Proper drafting of the agreement is therefore important. For example, using vague language or including unnecessarily restrictive terms could impede an employer’s ability to enforce a drug-free workplace.
Employers should strategically craft the language of the agreement. Carefully tailoring each provision of the agreement is key to having the employer, not the union, manage and control workplaces.
Consider effective negotiation tactics
Employers of unionized workplaces should be prepared to negotiate terms of the collective bargaining agreement, including, in some instances, drug-free workplace policies.
To effectively negotiate, employers should assemble a negotiation team to implement a strategic negotiation plan. An effective team may include key personnel that understand the workplace and the goals to be achieved. For example, a frontline supervisor, human resources representative, and operations executive may be great members of the strategic negotiation team. An employer’s labor law attorney will also be an essential member of the negotiation team to ensure that current laws are followed and terms of the agreement are properly drafted.
Once a team is assembled, the team may wish to prioritize desired terms for negotiation. Part of the bargaining process may require a little give and take. Thus, employers should prioritize which terms are “non-negotiables” and which terms are flexible. Reviewing your drug testing policy and its intended purpose ahead of negotiations will help determine which parts of your drug testing programs are imperative to business operations. For example, randomized testing may be vital to business operations if employing individuals in safety sensitive positions.
Union presence does not have to be a total buzz kill. Recognizing the high stakes, employers of unionized workplaces should take full advantage of the collective bargaining process to negotiate effective drug testing programs that help to keep workplaces safe.