Dignity, consistency key to testing procedures
Keep random screenings private and dignified
Although drug testing is seen as a potential source of workplace controversy, most employees are drug-free and happy to show that they are, experts say.
Despite that belief, David G. Evans, JD, a leading attorney in the field, urges you to minimize any potential legal problems with a straightforward, dignified, and consistent testing policy.
"Typically, employees are concerned about testing accuracy, and about preserving their dignity and their privacy," asserts Evans, who specializes in drug-free workplace and alcohol and drug testing issues in his Pittstown, NJ, practice. "And they are sometimes concerned about tests being misused, or maybe even being singled out for testing."
Chain of custody is critical
One of the surest ways to minimize your exposure is to practice good chain-of-custody procedures.
"You want to make sure to track the specimen from the time it is collected to the time it is tested, and then back to the employer," Evans advises.
He points out that you do that by keeping good records, using chain-of-custody forms, and making sure the specimens are properly collected and tested. Evans warns that each state has specific guidelines about specimen collection and testing, and that if yours is not a federal workplace and you want to conduct your own drug testing, you must check state law.
Careful chain-of-custody procedures also can save you if you do end up in court. "I was brought in on behalf of management in one case where an employee claimed the drug tests were inaccurate, but we were able to show that they were accurate," Evans recalls.
Good policy minimizes woes
The best way to avoid legal problems is to develop a well-thought-out policy that has been previewed by appropriate people in the company, Evans says. "If you’re a union shop, you are required by federal law to negotiate any drug policy with the union before you can implement it," he notes. "If not, I would recommend involving human resource people, at least some employees, certainly management, security, your medical staff, and definitely the wellness manager in short, anyone involved in implementing the policy and living with it."
Random testing is always the most problematical, he admits. "But if it is handled with dignity, and good collection procedures, there should be no problem."
ADA a source of confusion
The Americans With Disabilities Act (ADA) has added some new wrinkles to the drug abuse picture, both in terms of legal standards and employee concerns that their rights may be violated.
Basically, the ADA allows the employer to take action only after an employee has had a positive test. If the employee has a history of drug abuse, he is protected as a disabled person as long as he is not currently using illegal drugs.
"You can’t ask about any prescription drugs an employee might be taking until they have had a positive test, either, unless they are in a safety-sensitive position, like a truck driver or train conductor," says Evans. "If you do, you are in violation of the ADA."
Alcohol testing, he points out, is regarded as a medical exam. "It is only appropriate under the ADA if it is part of a pre-employment physical, or justified by business necessity," he explains. In other words, you can not randomly test for alcohol abuse.
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