Legal Angles On Drug Testing

By William Atkinson

In a recent seminar on crisis management and avoiding workplace violence, attorney Jeffrey L. Braff asked how many of the participants tested employees for drugs. “Half of the people raised their hands,” said Braff, a partner with the Philadelphia law firm Cozen O'Connor. “I asked how many didn't, and the other half of the people raised their hands. I said to them, 'You guys are getting their rejects.'"

A 1999 study by the Substance Abuse and Mental Health Services Administration found 70 percent of illicit drug users age 18--49 are employed full time. A 1998 National Institute on Drug Abuse report said drug-abusing employees are:

• 2.2 times more likely to request early dismissal or time off.
• 2.5 times more likely to have an absence of eight days or more.
• 3.0 times more likely to be late for work.
• 3.6 times more likely to be involved in a workplace accident.
• 5.0 times more likely to file a workers' compensation claim.

"Employers of all sizes should seriously consider the idea of maintaining a drug-free workplace," said Barry Nadell, president of InfoLink Screening Services, Chatsworth, Calif. "The cost of having an employee who is a drug abuser is in the thousands of dollars, including absenteeism, theft and accidents." A 2000 Cornell University study showed employee injury rates dropped 51 percent within the first two years after employers began testing for drugs.

While 75 percent of employers support mandatory drug testing in the workplace, 11 percent do not test because they believe it is too invasive and/or may violate the law, according to a recent Engineering News Record survey. Another 9 percent avoid testing because they think it’s too expensive, and 5 percent because they don’t think substance abuse is a major problem.

"Fifteen or 20 years ago, companies were asking whether they should drug test or not," said William Current, a consultant on drug-free workplaces. "They were concerned about legality and the accuracy of the testing. Today, we've gone beyond that. Almost everyone agrees that drug testing is important. The question is how the testing should be done," said Current, president of WFC & Associates, Coral Springs, Fla.

In assessing the legalities of drug testing, the two most important considerations are when and why the testing is done. Testing falls into two general categories, pre-employment and post-employment, which has two subcategories: "for cause" and random (including periodic testing). Five situations justify "for cause" testing:

• A post-accident inquiry.
• Reasonable suspicion (observing an employee who demonstrates behavior suggesting substance abuse).
• Post-rehabilitation (the employee returns to duty).
• Post-rehabilitation (follow-up testing).
• Change of employment (employee moves to new position).

"Employers should, at a minimum, engage in pre-employment testing," Braff said. There are generally few problems here. The most important thing is to use a reputable and certified testing entity."

Employers also need to consider the Americans With Disabilities Act and how it applies to employee drug testing. Employers cannot ask whether an applicant is a past or recovering addict, because this is defined as a protected disability under the ADA. However, you can ask if the candidate is a current drug user, because current drug use is not a covered ADA disability.

The ADA says that a drug test is not a medical exam. Thus, employers can test for drugs before offering employment. But they should still wait until they make a conditional offer of employment. It is costly to test everyone who applies for work, and the ADA prohibits "medical inquiries" before making a conditional offer. Although drug testing is not normally considered a "medical inquiry," it could be one if a test comes back positive and is found to be the result of a prescription medicine. When questioned, the applicant would have to acknowledge use of the prescription medicine to prove innocence, and the request for this information would be a "medical inquiry" that violates the ADA.

Testing for alcohol is another matter. "You cannot test for alcohol during the pre-employment phase because alcohol is a legal drug, and alcoholism is considered a protected disability under the ADA,” said Dennis L. Kerns, vice president of business development for W.P.C.I., Scotts Bluff, Neb. While pre-employment drug testing is relatively free of legal issues, employers can run into problems with post-employment testing, Braff said. "Most of these relate to privacy." He offered two general recommendations:

"First, make sure employees know in advance of any testing that this is something you do, and that they are subject to being tested under certain circumstances."

Second, use a reputable, certified testing agency, which ensures privacy. Beyond this, the critical factor for legal protection is whether the testing is done on a "for cause" or random basis. "The courts tend to look far more favorably on 'for cause' testing than on random testing," Braff said. “In states where random testing has been upheld, it is usually only in cases involving safety-sensitive positions, such as working on gas pipelines. But you might not get court support for random testing if an employee is packing widgets in a warehouse."

To summarize, Braff suggests that companies limit their drug testing to pre-employment, "for cause" situations and random testing if safety-sensitive positions are involved.

Several general recommendations can help you steer clear of drug testing-related lawsuits.

Plan your program in advance. "We see a lot of knee-jerk reactions when it comes to setting up drug testing programs," Kerns said. "Employers don't want to become involved in drug testing until they have a bad experience, such as one of their employees being arrested for cocaine distribution. When this happens, they want to test everyone immediately." A good program should be planned in advance and well-thought-out.”

"A relatively small number of states have their own statutes related to drug testing, so you need to determine whether your state has such a statute before creating a policy and introducing a program," Braff said. "If you have operations in more than one state, different state laws may apply."

"Be sure to select a drug testing company that knows and complies with the laws on drug testing,” Nadell said. Be sure the contract with the testing company offers the employer appropriate protection. If an applicant or employee is adversely affected by a false positive report, the laboratory should have primary legal liability, Braff said. In most of these lawsuits, the employer is brought in as a co-defendant, because the laboratory is an agent of the employer, he said. However, if the employer has exercised due diligence in selecting a reputable and certified agency, the employer should be on solid ground.

A written policy is important for your legal protection. "A good drug testing program begins with a good drug testing policy," Current said. The focus must be but on identifying potential problems in the workplace, not on "catching drug users." Testing companies can help create a policy. It should be reviewed by your attorney. In addition to complying with all applicable federal and state laws, the policy should have these four elements:

1. Why you do drug testing. For example, you might open the policy with the sentence, "The purpose of this policy is to protect the safety, health and well-being of our employees, customers, visitors and other members of the public."
2. How you do drug testing (the type of testing done, under what circumstances it will be done, etc.)
3. The consequences of failing a test (e.g., termination, suspension, one more chance, referral to an employee assistance program).
4. The treatment, rehabilitation or alternative options available if a person who fails a test remains employed and tries to overcome the drug problem.

Publicize the testing program. Educate employees about policies at least 30 days before implementing them, giving substance-abusing employees the chance either to stop using or resign.

During the hiring process, send a strong anti-drug message to all applicants, emphasizing that you operate a drug-free workplace and test for drugs. This will reduce legal exposure by decreasing the number of drug-using applicants who apply for work. Reinforce the message in employee handbooks and via the employee bulletin boards.

Have a designated contact person in the organization assigned to manage the program.

Maintain strict labeling and a chain of custody for the collection, transportation, handling and storage of specimens.

If a test reveals substance abuse, arrange for a confirmation at a Department of Health and Human Services-certified laboratory. The testing company should take care of this.

Employers have a choice of different ways to test for drugs. Because each has advantages and disadvantages, employers should consider using different test methods in different situations. Here are some options to discuss with the testing company:

• Hair testing for pre-employment, rehab recovery and change of employment, since it can detect usage 90 days back.
• Urine testing for situations that require knowledge of more current usage, such as random or periodic testing.
• Saliva testing for situations that require immediate knowledge, such as post-accident and reasonable suspicion.

Retain the services of a licensed medical doctor trained in drug testing who will make sure chain-of-custody procedures are followed and serve as a medical review officer. The doctor also contacts employees who test positive to find out if there are any medical or other legitimate reasons for that result. For example, if an employee or applicant tests positive for drugs using a hair specimen (which can identify usage up to a 90-day period), and the person is a recovering addict, the doctor should uncover this information. Or if there is a false positive due to a prescription drug, the physician should be able to uncover this, too. The doctor should give the person who tested positive any and all opportunities to explain any legitimate medical use. Testing labs should be able to recommend a qualified doctor. Names can also be found through the American Association of Medical Review Officers (www.aamro.com), which certifies its members.

Ensure strict confidentiality about results, using a "need to know" policy. Treat employees with dignity and maintain their privacy, Current said. Enforce the policy consistently. Employers cannot show favoritism in selecting persons to be tested or handling positive results. "For example, you can get into trouble if you test everyone who applies for a job except your brother-in-law and other people you know personally," Kerns said.

"When it comes to drug testing, the courts say employees have four general rights. If you violate one of these, you are creating a legal risk for yourself," Kerns said. The four rights are:

• To know the conditions of employment and the conditions under which drug testing will be conducted.
• To know why they are being tested. For example, the employer cannot tell employees the test is random testing when the real reason is "reasonable suspicion."
• Confidential notification of testing.
• Confidential results.

Very few invasion-of-privacy lawsuits relate to drug testing, Current said. "Drug testing is generally well-accepted among employers and employees. If you create and manage your program in compliance with all state and federal laws; test for drugs responsibly using proven accurate, impartial technology; and follow the other guidelines for an effective and legally sound program, then you will have few, if any, legal problems, he said. "Employees may not like drug testing, but they will accept it."

William J. Atkinson writes frequently for Public Power magazine on safety, business, human resources and other topics.