EMPLOYEE DRUG TESTING

Employee Drug TestingThe laws on drug testing vary widely from state to state. Some states allow them only for jobs involving public safety; some states allow them only for drivers; some states allow them for any occupation; some states don't allow them at all. Before requiring an applicant to take a drug test, consult with your state department of labor to learn the rules in your state.

It's not necessary - and coming from employers who routinely demand mandatory overtime and that fewer and fewer employees handle ever-increasing workloads - drug testing is nothing more than out-and-out hypocrisy.

Under the guise of concern for their employee safety and health, a large percentage of employers are now demanding the right to conduct some sort of drug testing. To most workers this smacks of hypocrisy. The same employers who routinely demand mandatory overtime or wage cuts or expect the workforce to handle highly toxic substances suddenly are professing concern for workers. Most employers see drug testing as just another hammer to hold over the heads of the employees.

NO. Employers already have the right to discipline for just cause, and being drunk or high on the job counts as just cause. Education and employee assistance programs have been found to be effective in dealing with workplace drug abuse; there is NO data to support the effectiveness of drug testing.

The only legally-required mandatory drug testing is for workers in "safety sensitive jobs in the transportation industry. Nevertheless, despite it not being necessary, testing is a problem that unions, especially stewards, have to deal with.

Here are some of the basic items we should insist upon being in a D&A policy if we have to agree to one.

NO random testing.

Testing for "just cause" or "reasonable cause" only. These can be defined as slurred speech, inability to walk straight, erratic behavior, or other visual signs that would cause a reasonable person to believe the person was under the influence of something.

If an employee admits that they have a problem then no testing should be necessary and the only discussion should be on whether a rehabilitation program is necessary.

There are different kinds of Drug Testing as: Urine drug screen, Hair drug screen, Blood drug screen, Saliva/Oral fluid screen, Sweat drug screen. There is a difference in what different kinds of tests show. Urine tests should be avoided, as these tests will show usage of drugs, including usage that occurs off the job or weeks earlier. If urine testing is agreed to, then the level of drugs present in the body must be set to only show current usage and impairment. Blood testing also shows recent use, as does saliva testing for marijuana use.

Under the ADA, alcoholism is considered a disability ONLY if the employee is actively undergoing treatment for it. The ADA excludes addiction to illegal drugs from being considered a disability.

Drug and alcohol testing is legally required only for workers performing "safety sensitive functions" in transportation industries. This law is enforced by the federal Department of Transportation.

The DOT regulations say they are testing for both on the job and off the job usage, and although we don't like this, it is currently the law. This does not mean that we have to agree to employees being faced with the same burden who are NOT covered by the DOT regulations.

Each of the Transportation Department's agencies have issued their own regulations - if there are questions, it is worth checking with them directly as to who is considered "safety sensitive". For example, the Federal Highway Administration includes mechanics in the drug testing pool only if they have a commercial driver's license (CDL). On the other hand, the Federal Aviation Administration includes all mechanics involved in aircraft maintenance Industry Includes Trucking, Commercial Drivers License Holders Aviation: Pilots, Flight Attendants, Mechanics, Others Railroads Engineers, Operators, Dispatchers, Pipeline Operations and Maintenance, Maritime Crews, Operating Commercial Vessels.

To ensure that employees whose jobs require a Commercial Driver’s License (CDL) to drive commercial vehicles, or employees whose jobs require them to perform mechanical repairs/service for commercial vehicles, are tested for drug misuse.

When disputing any employee drug testing case or grievance, the actions a steward takes and the factual investigation are critical in defending a worker's rights. Demand to be notified and to be present, if the employee consents, when the test is administered. Before the test, ask and document the answers to these questions:

1- Why does the employer want to test this employee?

2- What are the consequences for refusing to submit?

3- What's the employee's status while waiting for the test results?

4- How will confidentiality be protected?

5- What are the consequences of a positive test?

6- Will a second test be given?

7- Will the employer provide you with a copy of the laboratory report?

Remember that drug tests are not 100% accurate. The EMIT test, for example, has a 95% accuracy rate-and some labs have been found to have false-positive rates as high as 66 percent!

An important decision is whether an employee should go to a physician immediately for testing and a substance abuse assessment.

If a worker tests positive and is disciplined, you should be prepared to raise a number of issues and defenses. These include a lack of probable cause (can the erratic behavior be explained - get a statement from the worker when the issue first comes up); citing deficiencies in company or lab procedures; or charging the test result to be a "false positive" due to a prescription drug, over-the-counter medication, or passive exposure.

A covered employee who declines or refuses to take a drug test will be considered to have had a confirmed positive test.

Some employers require a drug screen of every applicant for employment. A test for current use of illegal drugs may be conducted before an offer is given, but an alcohol test may only be given to an applicant post-offer (though it may be given pre-employment). So applicant testing is considered the safest drug-testing alternative. The successful applicant for jobs will be required to pass a drug test following conditional offer of employment.

All covered employees are subject to unannounced random testing. Fifty percent of all covered employees will be randomly tested for drugs annually. When notification is received that an employee has had a confirmed positive drug test, the employee’s department will be notified, the employee will be suspended (with or without pay as paid leave is available; sole exception outlined under "Request to Retest"), and the employee will be instructed to schedule an appointment with a representative of the campus Employee Assistance Program (EAP). An employee who fails to schedule and appear for the appointment is subject to disciplinary action, including termination.

Covered employees are subject to drug testing if the employee’s performance, behavior, or other observable characteristics suggest that the employee may be impaired due to drug use. A drug test will be conducted when a supervisor, trained in the detection of possible indicators of use, has reasonable suspicion (also referred to as "reasonable cause") to believe that the employee is impaired because of drug use.

An employee identified for reasonable suspicion testing will be suspended (with or without pay as paid leave is available), pending the results of the drug test. If the result is negative, the employee will be reinstated and paid for all the time lost. If a reasonable suspicion test is confirmed positive, the employee’s department will be notified, the employee will be suspended (with or without pay as paid leave is available), and the employee will be instructed to schedule an appointment with a representative of the EAP. An employee who fails to schedule and appear for the appointment is subject to termination.

Some employers require an automatic drug test after any accident of at least a minimum level of severity. This approach can be effectively used in combination with other testing methods. Post-accident testing provides some of the benefits of reasonable suspicion testing because it tests employees after a mistake has been made, but also provides some of the benefits of random testing because the testing is based on an objective event, rather than a supervisor's subjective belief. The key in implementing post-accident testing is to clearly define the types of workplace accidents that require a drug test and obtain employees' consent to drug tests in such circumstances.

An employee who has tested positive must test negative on the applicable test within 45 days from the first test. Subsequently the employee will be returned to duty following clearance from the EAP. He or she will be subject to unannounced testing periodically thereafter. The employee must be randomly tested six times in the next 12 months following return to duty.

Employees may voluntarily self-identify that they may be impaired due to drug use. Discipline will not be initiated because employees self-identify. Self-identification must be totally voluntary and is not allowed after an employee has been notified to report for a random, reasonable cause, or post-accident test. Employees will be referred to the EAP for evaluation and testing; they will be subject to return to work/follow-up testing.

An employee may submit one written request for retesting of a specimen producing a positive test result, either by the original or another certified laboratory. Such requests must be made no later than 72 hours after receipt of a confirmed positive test result. The employee shall pay the cost of the additional test and all handling and shipping costs. In this situation, the employee will be placed on leave with pay until the results are known.

No covered employee shall: use, sell, purchase, or have in possession, drugs causing impairment on ASU time (employees may possess and use legally obtained medication provided it does not impair the ability to safely operate a vehicle) refuse to submit to drug test have a greater on ASU time or test positive for drugs as follows: