By Kathryn J. Russo
"Many workplace drug and alcohol testing policies do not
define 'refusing to test' and provide no disciplinary consequences
for it. This is a serious mistake."
After many years advising employers about drug and alcohol testing, I have observed certain mistakes that are frequently made in the course of addressing these issues. Many of these errors could have been avoided through the preparation of a thorough drug and alcohol testing policy that complies with applicable laws, as well as some training. Here, in no particular order, are the most common mistakes employers make when administering their drug and alcohol testing programs:
1. Applying DOT requirements to non-DOT-regulated employees. The U.S Department of Transportation's drug and alcohol testing regulations apply to a very specific group of employees and no one else. Employers sometimes believe that they can take a DOT drug and alcohol testing policy and apply it to everyone in the organization. This is a serious mistake because drug and alcohol testing of non-DOT-regulated employees is instead governed by applicable state and local laws. Those laws may prohibit certain types of testing that are required by DOT. Some state and local drug testing laws provide aggrieved employees with a private right of action to sue their employers, along with significant financial remedies.
2. Not realizing that public employers face additional restrictions on drug testing. While legal principles place limits on all employment related drug-testing programs, public employers have unique limitations that private employers do not. Specifically, drug tests are regarded as "searches" and if done by a public employer, such as a municipality, are considered "state action." This implicates the Fourth Amendment's prohibition against unreasonable searches and seizures. Read this RiskLetter article by Kevin Sturm for critical details.
3. Not having a written policy. Many states do not have drug testing laws, and employers in those states often believe it is not necessary to have a written drug testing policy (for non-DOT-regulated employees). But a written testing policy is a best practice in all states. In the policy, the employer should put applicants and employees on notice as to the types of testing that will be required, the types of conduct that are prohibited, and the disciplinary consequences for refusing to test and testing positive, among other things. Doing so helps enormously in the event that there is litigation involving a drug or alcohol test result.
4. Having a written policy that is vague. Some employers like their drug and alcohol testing policies to be as brief as possible, and may even say something like "the employer reserves the right to conduct drug and alcohol testing in its sole discretion." Such a vague policy leaves many questions unanswered, such as:
What types of tests will be conducted? What specimens will be tested? What happens if a test result is negative dilute, which could indicate an attempt by the employee to alter the results? What happens if the employee refuses to test or tests positive?
As discussed above, the better practice is to have a clearly written testing policy that complies with all applicable state and local laws and that answers all questions that employees might have about the testing process and procedures. Then, get all employees to sign a policy receipt showing that they received a copy of the policy and understand its consequences.
5. Applying inconsistent disciplinary consequences for positive test results. Sometimes employers want the ability to take "disciplinary action up to and including termination" for a positive drug or alcohol test result. They may want the ability to retain long-term, loyal employees while firing others. Although this practice may appear reasonable, employers who do this must examine their practices carefully to ensure that they are not unwittingly creating grounds for potential discrimination lawsuits.
For example, if the employees who are terminated tend to be people of color and those who are retained tend to be white, there may be a basis for a race discrimination claim.
6. Failing to conduct reasonable suspicion tests immediately. Reasonable suspicion tests must be conducted as soon as there is a suspicion to test. Employers sometimes wait too long because they are busy doing other things or because they are conducting a factual investigation. But alcohol metabolizes in the human body very quickly, so reasonable suspicion alcohol tests must be conducted within eight hours of the suspicion. For reasonable suspicion drug tests, there is a little more time—typically 24 to 32 hours. But the best practice is to conduct the testing as soon as there is suspicion. The more time that elapses between the suspicion and the test, the more likely it is that the employee will test negative.
7. Failing to follow through with reasonable suspicion testing after hearing the employee's excuse. Another common mistake that often occurs with reasonable suspicion testing is that the employer accepts the employee's explanation as to why he is acting like he is impaired by drugs or alcohol. Common excuses include:
- I didn't get enough sleep last night.
- I am having a reaction to my allergy (or other) medication.
- I stopped taking my prescription medication and am trying to adjust.
- I'm hung over from last night.
- I'm just depressed because of [a death in the family] [my divorce] [fill in the blank].
Employers sometimes decide that the employee's excuse sufficiently explains the behavior and do not follow through with the reasonable suspicion testing. But if there is reasonable suspicion to test, and trained managers have determined that testing should be conducted, then the testing still should occur regardless of the employee's explanation. Documentation and consistency are critical for any reasonable suspicion circumstance, whether it results in testing or not.
8. Failing to train supervisors. Once a drug and alcohol testing policy is ready to be implemented, the employer should train all supervisors to ensure that they understand the policy and know how to enforce it. Without such training, supervisors often do not read the policy or assume that the human resources department (or someone else) will enforce it. Additionally, supervisors often will not enforce the policy because they do not know how to make reasonable suspicion determinations and are afraid of making the wrong decision. All of these issues should be addressed in a training session that answers supervisors' questions and makes them comfortable with the policy and its procedures.
9. Failing to recognize — or define — "refusing to test." Many workplace drug and alcohol testing policies do not define "refusing to test" and provide no disciplinary consequences for it. This is a serious mistake because employees routinely engage in evasive behaviors to avoid a drug or alcohol test. Such behaviors may constitute "refusing to test" and should lead to termination.
One of the most common examples is delay. Many employers overlook an employee's excuses to delay the drug or alcohol test for as long as possible. An employer's written policy should include a clear and comprehensive definition of refusing to test, such as: "Refusal to submit to a test" includes, but is not limited to: delay in reporting a workplace injury, motor vehicle collision, or other incident; excessive delay in reporting for a required test; refusing or failing to provide a specimen, or refusing or failing to attempt to provide a specimen without an adequate medical explanation; adulteration or substitution of a specimen, or attempting to adulterate or substitute a specimen; failing to complete any paperwork required by the collection facility; failing to remain at the testing site until the test is completed; failing or refusing to submit to a second test that may be requested by the collector or the employer; or failing to cooperate with any aspect of the testing process.
10. Conducting overly broad post-accident or post-injury testing. Post-accident testing is restricted or prohibited under some state and local drug-testing laws. In states where it is permitted, employers also should be aware of recent Occupational Safety and Health Administration guidance stating that there should be a "reasonable possibility" that drugs or alcohol could have caused or contributed to the accident. Testing should not be conducted in circumstances where drugs or alcohol could not have been a factor in the accident, for example, insect stings, animal bites, allergic reactions, repetitive stress injuries, injuries resulting from pre-existing illnesses (such as diabetes, epilepsy, etc.), slips and falls on ice, among other things.
Even before OSHA's recent guidance, I warned employers not to conduct post-accident testing after every trivial injury or illness, because it could appear discriminatory or retaliatory (such as workers' compensation retaliation or disability discrimination). The better practice is to include language (unless different language is required or permitted by applicable state or local law) that 1) the employee's acts or omissions caused or contributed to the accident; 2) there is a reasonable possibility that drugs or alcohol could have caused or contributed to the accident; and 3) there was a serious injury requiring immediate medical attention away from the scene of the accident or there was serious property or vehicle damage.
Employers should consult with a labor attorney to ensure their drug and alcohol testing policies comply with all applicable laws and thoroughly address the practices that the employer wants to enforce in its workplace.
Originally reprinted in the June 2018 issue of Occupational Health and Safety Magazine, in partnership with the Drug and Alcohol Testing Industry Association. Edited and reprinted with permission from author, Kathryn Russo, Attorney at Law, Jackson Lewis P.C.
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