Drug and alcohol policy for contractors

Question: How can a company ensure independent contractors are subject to its drug and alcohol policy? Can it require contractors to pay for their own post-incident tests?

Answer: Engaging independent contractors can vary in size and scope of the project and service. Many companies may have their own drug and alcohol policy. If this is the case, during negotiations of the contract, a company may simply require that the drug and alcohol policy of the contractor be as robust as their own. In the case where the policy falls short, or where the independent contractor has no policy, then expectations around drug and alcohol use and monitoring must be clear. These discussions should be incorporated into the onboarding of independent contractors and as part of contract negotiations.

If you want independent contractors to be subject to your drug and alcohol policy, your policy must be drafted with them in mind. It should clearly identify who the policy applies to, and the subjects’ duties and responsibilities under the policy. Every contractor should be provided the policy and given notice of the policy. Ensure that your contractors provide the policy to all of their employees or, if feasible, provide it to them yourself or post it in a common area. It is common practice to include contractors as subjects of the drug and alcohol policy, but best practice is to ensure everyone at the worksite is aware of the policy and familiar with the obligations it imposes.

Employers have a legislated duty to provide a safe workplace. Whenever there is more than one employer operating within a workplace, spheres of influence can become unclear. If you are operating in a jurisdiction which mandates prime contractor duties, be sure to identify the prime contractor, which increases exposure to workplace risk liability, and responsibilities in regards to these risks. The prime contractor has an obligation to all employees to provide a safe worksite. If you have determined a drug and alcohol policy is part of a safe worksite, then ensure your policy is drafted appropriately to capture all engaged individuals.

Part of an employer’s responsibilities is to exercise due diligence in providing a safe workplace. If drug and alcohol misuse and abuse can cause risks to safety in the workplace, then you want to ensure that the policy should include contractors. If you work in a safety-sensitive industry, or if you are engaging contractors in safety-sensitive services, you should have a policy in place.

With the legalization of recreational cannabis use, there is more reason to give contractors notice regarding your drug and alcohol policy. Positive testing for cannabis is not always indicative of impairment and without ample notice, your contractors may fail drug testing, terminating services. With the variety of cannabis use policies, clarity and transparency will be key for compliance. As part of your engagement with the contractor you should advise them of your drug and alcohol policy and your expectations around legal cannabis use, possession, and testing, so that they may stay or become compliant.

For all post-incident testing, best practice is to test only the individuals directly involved in the incident. The policy will have to define "incident" clearly. It would be difficult to enforce a provision in your policy which requires contractors to pay for their own post-incident testing without the contractor explicitly agreeing to that provision. If you want your contractor to pay for its testing, you should execute a contract as part of the services agreement or arrange for express and written consent from the contractor.