Questions About Drug Tests or Drug Testing?
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When an employer requests a drug test from an employee, the employee is either instructed to go to a collection site or the employer will perform an on site drug test. There, the employee's urine is collected in a specially designed secure cup and sealed with a tamper resistant tape (if the sample is going to a lab). The laboratory then tests the urine sample for several drugs using an analyzer that performs immunoassay as the initial screen. If the urine screen is positive then the sample is used to confirm the findings by gas chromatography - mass spectroscopy (GC-MS) methodology. The test results are relayed to an MRO (Medical Review Office) where a medical physician reviews the results. If the result of the screen is negative, the MRO informs the employer that the employee is clean and has no detectable drug in the urine. However, if the test result of the immunoassay and GC-MS are positive, the MRO contacts the employee and tries to determine if there is any legitimate reason for the employee to have a positive result such as a medical treatment or prescription.
Employee testing or random screening as it is otherwise known is currently one of the most hotly debated forms of testing today. On the surface, random testing appears to be a violation of the Fourth Amendment of the Constitution, which states “to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” In addition to this, the Fourth Amendment states as well that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Despite this statement in the Constitution, the US Supreme Court ruled in Skinner v. Railway Labor Assn. 489 U.S. 602 (1989) in favor of random drug testing. The main reason for random drug testing is to deter drug use, thus making the work place a safer environment.
Hallmarks of Successful Drug-Free Workplace Programs
Employers who have successfully implemented drug-free workplace programs offered these suggestions to employers who are just beginning to address the issue of alcohol and other drug abuse in their own organizations:
Think Things Through
Starting a drug-free workplace program requires careful planning. It’s important to think ahead, define clear goals for the program, and seek advice from other employers with experience when you need it. Learn as much as you can about existing programs and policies before you begin.
Work with your most valuable resource: your employees. They can help get the message out, clarify goals, and make sure the program fits into the daily reality of your workplace. Showing employees that you value their input vests them in the program and helps to make it work. Most estimates indicate that at least 8 out of 10 of your employees are probably not abusing alcohol or other drugs -- they are already part of the solution.
Drug-free workplace programs are serious business. Violating a drug-free workplace policy could mean that someone will lose a job or not be offered one. Protect your organization with procedural rules that are clear, fair, and consistently applied. The policy should also include provisions for appeal. With these steps in place, employees are more likely to support the program and trust that the employer will carry it out fairly.
Consider the Collective Bargaining Process
Where drug testing is a mandatory subject of collective bargaining, the rules for involvement of employee representatives are clear. Even when drug testing is not subject to collective bargaining, or when it is mandated by law, discussing the drug-free workplace policy with union representatives can be very useful. They may have model programs or other ideas to offer, and they can be very helpful in communicating program purpose, procedures, and policies to the employees they represent.
Employees will support and have faith in your drug-free workplace program when their confidentiality is protected. If employees choose to tell coworkers about their private concerns (e.g., results of a drug test), that is their decision. However, when an employee tells you something in confidence, you are obligated to keep it between the two of you. To ensure employee support of the program and avoid legal problems, make confidentiality a priority and spell out the penalties for anyone who violates it. (See the Supervisor’s Guide for more information about confidentiality.)
Ensure Accurate Testing and Objective Review
If your program includes alcohol or other drug testing, satisfy yourself and your employees that samples are correctly collected; the chain of custody is flawless; the tests are conducted by properly trained and supervised laboratory technicians using equipment that is appropriately maintained; laboratory performance and accuracy is independently reviewed; and results are communicated through a medical review officer (MRO) trained to render judgments.
Ensure Proper Use of the Program
Fair procedures and provisions for appeal reduce the possibility of misunderstandings between employers and employees. Train your supervisors to carry out their roles in the drug-free workplace program appropriately, and review and evaluate their performance in this area to prevent misuse of the program.
Ask For Legal Review
Whether you write the first draft of your policy yourself or tailor an existing policy to your needs, having your program, policy, and procedures reviewed by an attorney experienced in labor and employment matters in your State is extremely important. An attorney can advise you on any relevant State laws governing drug-free workplace programs or employer testing, and on how the Americans With Disabilities Act (ADA) may affect your program implementation. An attorney can also alert you as laws and regulations change over time. (See the Supervisor’s Guide, "Other Issues" section, for more information about the ADA.)
Pay Attention to the "Human" Factor
A drug-free workplace program that communicates care and concern for employees is more likely to succeed than one that seems scary or that intimidates employees. Providing assistance for employees with alcohol or other drug problems is one way employers can communicate that they care. Not every organization can afford to cover the costs of treatment for alcohol or other drug abuse; however, you can encourage employees to seek outside help and make it clear that help is available.
Ensure Good Communication and Ongoing Review
Explain your drug-free workplace program by using a variety of communication strategies. The message should be clear from the start. Effective ways to communicate include written materials, charts, meetings, question-and-answer sessions, and a suggestion box. Employers who are successful at this know it is important to repeat the message periodically, watch how the program works on a day-to-day basis, invite feedback, and revise the program as needed to meet the specific needs of the workplace.
Drug-free workplace programs are being studied and improved all the time. Keep current by joining local drug-free advocacy groups or coalitions. Some trade and professional associations also provide up-to-date information about drug-free workplace issues. Some employers ask an employee group to periodically review the program and suggest appropriate changes.
Address Concerns and Barriers
Employers with successful drug-free workplace programs report that they had a number of barriers to overcome before implementing a successful program. The following are examples of common barriers you may face as you consider implementing a program:
Is my company too small?
No organization is too small to be concerned about creating a workplace free of the effects of alcohol and other drug abuse. Problems related to alcohol and other drug abuse can arise in a workplace of any size, and a workplace without a policy or program is exactly where problems are likely to occur.
Will a drug-free workplace program cost too much money?
You can be part of the solution without spending a lot of money. Although smaller businesses usually have fewer resources for hiring outside trainers or for paying for treatment, they can do something. Free or low-cost assistance is often available. Implementing a drug-free workplace program in stages is another option; for example, you could begin by establishing a clear policy that defines the company’s expectations. That way, everyone knows what to do if an alcohol or other drug problem arises. The materials in this kit offer suggestions to help you minimize the cost of a program.
Will I be sued?
Drug-free workplace policies, drug testing, and personnel actions that are tied to violating a drug-free workplace policy are widely accepted employment practices. As long as confidentiality is protected and the employer implements the policy in a fair and consistent manner, the chances of being sued are minimal. Again, have your policy and procedures reviewed by an attorney who is experienced in labor and employment matters in your State -- before you put the policy/program in place.
Do I need to bother? . . . Wouldn’t I know if employees were abusing alcohol or other drugs?
Abuse and addiction are serious, complex, and progressive illnesses. You may not "know" about an employee’s condition until the later stages of the disease process because that is when problems related to abuse or addiction become most apparent. So you may or may not know if employees are abusing alcohol or other drugs.
Organizations that don’t have drug-free workplace programs tend to be places where alcohol or other drug abusers want to work. Having a program in place now can reduce costly problems in the future. In addition to all of the other health, safety, and security risks that can arise, no employer wants to be the employer of choice for people who abuse alcohol or other drugs.
Will having a program create negative attitudes among employees?
Employees will be concerned and have questions about any new policy or program. Because of the sensitive nature of a drug-free workplace program, it is important to involve employees, listen to their questions and concerns, and explain why the decision has been made to implement a drug-free workplace program in the organization. If the program is presented in a positive way -- not as punishment -- the chances are good that employees will respond positively.