Jeffrey Braff, a partner at the Philadelphia law firm Cozen O’Connor, was holding a seminar for employers on avoiding workplace violence when he asked the participants how many of them tested employees for drug use.
“Half of the people raised their hands,” he says. “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.’”
That is because, according to a 1998 National Institute on Drug Abuse report, drug-abusing employees inflict losses on their companies with both missed time and frequent accidents. They are more than twice as likely to leave work early or miss days, are two-and-a-half times more likely to be absent for eight days or more and are three times more likely to be late for work. They are also more than three-and-a-half times more likely to be involved in a workplace accident and five times more likely to file a workers’ compensation claim.
Accordingly, research shows that companies benefit when they identify the drug abusers among their employees. A 2000 Cornell University study found that employers experienced a 51 percent drop in injury rates within the first two years of initiating a drug testing program.
Yet some employers fear—often legitimately—that drug tests may violate their employees’ legal rights. In July 2001, USA Today reported that employees are filing more lawsuits with claims of erroneous test results. And juries are awarding six-figure verdicts; not only for job loss and wages, but also for reputation damages. When the Department of Health and Human Services inspected testing labs, nearly three hundred results out of about thirteen million were found to be questionable. Granted, three hundred out of thirteen million is not a lot, but it could lead to three hundred lawsuits. Because of this legal uncertainty, employers must plan their drug testing strategies with great care.
Employee Rights
“When it comes to drug testing, the courts say that employees have four general rights,” says Dennis Kerns, vice president for business development at drug testing service Western Pathology Consultants Inc. in Scottsbluff, Nebraska. “If you violate one of these, you are creating a legal risk for yourself.” These employee rights include:
1. The right to know what the conditions of employment are and under what circumstances drug testing is conducted.
2. The right to know why they are being tested. (For example, you cannot tell someone you are sending them for random testing when the real motive is reasonable suspicion.)
3. The right to confidential notification for testing. (If you randomly test, you need to confidentially notify the employees who have been selected.)
4. The right to have test results remain confidential.
By respecting the latter two rights, says Braff, employers can avoid the most perilous legal dangers, most of which relate to privacy. He recommends using a reputable and certified testing agency to assist with this.
But ultimately, he says, 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,” he says. “In states where random testing has been upheld, it is usually only in cases where safety-sensitive positions are involved, such as working on gas pipelines. As such, you might not get court support for random testing if an employee is packing widgets in a warehouse.”
Creating a Fair Plan
Here are a dozen general recommendations that can help an organization steer clear of drug testing-related lawsuits:
1. Plan your program in advance.
“We see a lot of knee-jerk reactions when it comes to small employers and drug testing programs,” says Kerns. “They 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. If you attempt to introduce a program overnight, you are just asking for problems, legal and otherwise, he cautions.
2. Carefully negotiate all contracts.
“Be sure to select a drug testing company that knows and complies with the laws related to drug testing,” says Barry Nadell, president of InfoLink Screening Services in Chatsworth, California, which provides substance abuse screening services.
As you negotiate with the testing service, be sure the contract offers your company appropriate protection. For example, if an applicant or employee is adversely affected as a result of a false positive, the testing laboratory should have primary legal liability, says Braff. In most of these lawsuits, the employer is brought in as a codefendant because the laboratory is an agent of the employer. To assure this protection be certain that there is no language in the contract stating that the testing company will indemnify your organization for any defense costs.
3. Be aware of local laws.
“A relatively small number of states have their own statutes related to drug testing,” says Braff. “As such, you need to determine if your state has such a statute before creating a policy and introducing a program.”
It is important to remember that, if you have facilities in more than one state, different state laws may apply. Check state laws to determine restrictions and rights related to employee drug testing programs. The testing company you select and your attorney should be able to help you in this area.
4. Set testing guidelines in a written policy.
The policy should be in line with all federal and state laws that apply to the employer. Seek the assistance of your testing company in creating your policy, and be sure to have it reviewed by your attorney. In addition, make sure your policy answers these four questions:
• Why does the organization test for drug use? 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.”
• How does the organization test? Define the type of testing and the circumstances under which it will be done.
• What are the consequences of failing a test? Termination? Suspension? A warning?
• Are there any second chances? What treatment, rehabilitation or alternative options are available to those who fail a drug test but will remain with the company and try to overcome their drug problems?
5. Publicize the policy.
Educate employees about the policy and program at least thirty days prior to implementing it. This gives employees who are currently abusing drugs the chance to either stop or resign.
During the hiring process, send a strong antidrug message to all applicants, emphasizing that you operate a drug-free workplace and that you test for drugs during the preemployment phase as well as during employment. This will reduce legal exposure by reducing the number of drug-using applicants who apply for work.
6. Reinforce your antidrug message.
Include your position on drug use in employee handbooks and on the company bulletin board. Make sure employees continue to be aware of this policy as long as they remain with the organization.
7. Designate a person in the company to manage the program.
A manager assumes responsibility and accountability, which increases the program’s chance of success. This position also provides a point person for questions from the staff.
8. Handle test specimens appropriately.
Have a system to maintain strict labeling and chain of custody for the collection, transport, handling and storage of specimens.
9. Be ready to retest.
If you end up with a positive test result, arrange for a confirmation test at a Department of Health and Human Services-certified laboratory. (The testing company should take care of this for you.)
10. Have a medical review officer available.
A medical review officer (MRO) is a licensed medical doctor with special training in drug testing who makes sure that chain of custody procedures are followed. The MRO also contacts employees who test positive to determine if there are any medical or other legitimate reasons for the result, such as prescription medication. Your testing lab should be able to recommend an MRO. Names can also be found through the American Association of Medical Review Officers (www.aamro.com), which certifies its members.
11. Enforce the policy consistently.
You cannot show favoritism in selecting test subjects or handling positive results. “You can get into trouble if you test everyone who applies for a job except your brother-in-law,” says Kerns.
12. Ensure strict confidentiality about results, using a need-to-know policy.
The final recommendation is the most vital, says Kerns. “When I train companies, I say there are three things I need to cover: confidentiality, confidentiality and confidentiality,” he says.
Preemployment Testing Liability
The safest time to test people for drug use is before they become an employee, according to lawyer Jeffrey Braff. He suggests that this is an essential part of a drug-testing program. “There are generally few problems here,” he says.
Dennis Kerns of Western Pathology Consultants agrees. “Preemployment testing tends to be a nonrisk area, because, while employees have certain rights, prospective employees do not,” he says.
Yet there are risks to be considered. You cannot ask applicants if they are recovering from past addictions, which are covered by the Americans with Disabilities Act (ADA). You can, however, ask candidates if they are current drug users, because current drug use is not protected by the ADA.
Testing everyone who applies to an organization is costly, though, and applicants whose tests are positive may be forced to divulge that they are using prescription medicine, which would be a violation of the ADA.
Positive Drug Test Rates for the General Workforce
1999 2001
Periodic Testing 4.5 percent 3.4 percent
Preemployment Testing 4.5 percent 4.5 percent
Return to Duty Testing 5.5 percent 5.5 percent
(after recovery)
Post-Accident Testing 5.6 percent 6.1 percent
Random Testing 6.9 percent 7.9 percent
Source: Quest Diagnostics
