Our Final Look at Drugs and Alcohol in the Work Place.

December 3, 2011 admin Uncategorized, 1

After developing and adopting the company’s new testing policy, it is now time to examine the practical considerations of implementing the new policy.

 

It is Critical to Ensure the Accuracy of the Tests. 

 

The highest concern an employer  involved in drug or alcohol testing programs has to be in ensuring the accuracy of the selected tests.  There is a growing body of medical literature on this subject showing that certain tests are highly accurate for specific substances, while others have more dubious validity. Again, a basic decision must be made as to the substances for which an employer will be testing. Expert assistance should be sought to determine the tests that are most reliable and cost-efficient for those substances.

 

We should not forget the employee perspective here either.  If you were an employee that was subjected to, what you already considered embarrassing testing procedures, imagine the humiliation that the employee would feel if he were tagged a false positive finding based on a test of “dubious validity?”  Even if the employee is “cleared” by subsequent re-testing he will always have that stigma.  Again, just an example of “Blow Back” that could arise in this type environment the angrier a wronged employee is the likely he will sue you.

 

Use Correct Test Procedures.

 

Of equal concern to selecting the proper tests is ensuring that appropriate test procedures are used.  For example, most knowledgeable commentators believe that more than one test should be performed before an employer concludes that an individual has ingested a particular drug.  In addition, there are varying levels of accuracy with respect to confirmation tests.  Employers should strive to achieve the highest degree of reliability in the manner in which samples are obtained and tested.  Of course, before any testing is performed, the employer is best advised to obtain a signed consent and release form from each employee.  The form should also advise the employee of:

• What tests which will be required, and
• The purpose of the tests.

 

The consent form should also include language assuring the employee that appropriate procedures will be used in handling and analyzing samples.  The form should also provide a space for the employee to identify legal prescription medications that may show up in the test results.

Many employers obtain an applicant’s consent to drug testing by including appropriate language on their application forms.  However, I believe that while this is helpful, applicants should still sign a more detailed consent form at the time they are tested.  The employer’s written drug/alcohol testing policy should provide that failure to execute such a form will be cause for termination.

 

The Need for a Defined Chain of Custody.

 

 Another practical concern with significant legal consequences is the maintenance of a delineated chain of custody in order to avoid claims of tampering, mistake, etc.

 

General Checklist for a Successful Drug and Alcohol Program.

 

The following checklist should be consulted in drafting and implementing any drug and alcohol program:

 

Pre-Implementation Checklist. Before implementing a drug and alcohol program, an employer should:

•  Identify problem areas.
•  General community concerns.
•  Specific plant/industry concerns.
•  Anecdotal evidence of problems.
•  Determine means of addressing the concerns.
•  Employee assistance programs and/or  discipline/discharge policies
•  Develop policy implementation guidelines consistent with general corporate policy.
•  Develop a general policy statement addressing:
•  The drugs with which the employer is concerned.
•  The role of the employee assistance plan.
•  The role of the disciplinary system.
•  Develop and promulgate a policy on testing:
•  A policy on testing of applicants.
•  A policy on testing of employees.
•  Develop and promulgate revisions to the company’s disciplinary policy consistent with the aforementioned policy statements.
• Advise employees of the disciplinary consequences of:
•  Failing or refusing to participate in testing procedures.
•  Possession or sale of drugs on company premises.
•  Continued use or abuse of drugs.

Document each step of the process outlined above.

The Americans with Disabilities Act does not consider a test to detect the illegal use of drugs to be a medical examination, and therefore an applicant can be required to take such a test before a conditional offer of employment is made. This is not so of a test to detect the use of alcohol.

 

Employers should be wary of using the phrase ‘‘abuse’’ when they mean ‘‘abuse and/or use’’.  Similarly, avoid use of the phrase ‘‘under the influence of,’’ particularly when referring to drug usage.  Unlike alcohol, there are no generally accepted or legally recognized standards for ascertaining when a recreational user steps over the line and becomes an abuser of a particular drug or when an individual is under the influence of a drug as opposed to having that drug within his bodily system.  Accordingly, using or misusing the phrases ‘‘abuse’’ and ‘‘under the influence of,’’ employers may assume a burden that they cannot satisfy (i.e., proving the applicability of those terms in a particular case.)

 

Implementation-Phase Checklist. 

 

While implementing the drug and alcohol program an employer should:

 

• Establish chain-of-custody procedures for the urine/blood sample from clinic to lab, and within the lab.
• Develop appropriate consent forms.
• Choose state-of-the-art testing procedures and facilities, particularly if discipline or discharge is anticipated.

 

Program-Monitoring Checklist.

 

To successfully monitor the drug and alcohol program, an employer should:

• Apply standards appropriate to forensic drug/alcohol issues.
• Test the testers.
• Testing laboratories ought to be subject to rigid checking procedures including various tests for false negatives as well as false positives.
• Ensure that specimens are retained in case of potential legal challenges.

 

Should an employer advise an individual that he or she failed a drug or alcohol test?  If so, should an employer permit an individual to have a portion of the tested specimen examined by a laboratory of the employee’s choice?

In most instances, employees who are disciplined or discharged after a drug and alcohol test are going to relate the two events, and no purpose is served in attempting to disguise the correlation. Employers who choose not to take action after receiving positive tests and then later discipline or discharge the tested individual for some other makeweight reason increase the potential for an adverse result if and when the discipline or discharge decision is challenged.

While some employers have taken the approach of not advising job applicants that they failed drug and alcohol tests, on the assumption that the applicant will not necessarily correlate the failure to be hired with the results of medical tests, again, in the authors’ view, general principles of fairness and equity dictate that persons who failed tests and are not hired for that reason be advised of this. Such notice allows an individual to challenge the test and allows the employer to reconsider his actions before a lawsuit is filed.  Be aware that some states require an employer to notify an applicant or employee of a positive test result, provide additional information, and allow the individual to have an independent test done of the sample to verify the test results.

Along the same lines, an employer should not be reluctant to provide an authorized laboratory of the employee’s own choosing a sample of the specimen that tested positive, as long as the employer has confidence in the testing procedures of its own laboratory. Doing this is more likely to discourage legal complaints than it is to encourage them. Should the employer provide an individual with a portion of the sample for testing by another laboratory, care should be taken to preserve a sufficient portion of the specimen for validating the employer’s laboratory’s tests.

Lastly, when dealing with a present employee who has tested positive, the employer, before advising the employee of the result, may want to require a surprise re-test, and take disciplinary action only if both specimens are positive for controlled substances. This procedure would eliminate many potential employee claims of lab mix-ups, poor chain of custody, improper specimen handling, etc.

addiction, alcohol, drug, employee, employer, employment policy, testing. business

Our Second Part of Drugs and Alcohol in the Workplace: The Aspects of a Well-Defined Drug and Alcohol Program. How has the Business Community Help Judges Best Crack Down on Identity Theft?