Attorney's Guide to Drugs in the Workplace

A concise, step-by-step guide to formulating an employment policy on drugs and alcohol, Edited By Tia Schneider Denenberg and R.V. Denenberg.

ABA Section of Labor and Employment Law
ABA Standing Committee on Substance Abuse

With the Assistance of
National Drugs Don't Work Partnership
George Meany Center for Labor Studies
General Electric Foundation
Copyright (c) 1996
American Bar Association

Authorization to reproduce and distribute this publication in its entirety is granted by the American Bar Association provided no charge is made for the publication and provided this statement and accompanying copyright notice is reproduced in the publication, together with the title page and Preface.

Authorization to reproduce and distribute any part of this publication is granted by the American Bar Association provided no charge is made for the document and provided the following statement is included:

Reprinted with permission from Attorney's Guide to Drugs in the Workplace, Copyright (c) 1996 by the American Bar Association, Chicago, IL.

Published by the American Bar Association
750 N. Lake Shore Drive, Chicago, IL 60611
International Standard Book Number 1-57073-267-1
Printed in the United States of America

Preface

This publication had its origin several years ago when Bernard King, past chair of the ABA Section of Labor and Employment Law and Jack Driscoll, then chair of the ABA Special Committee on the Drug Crisis, discussed an initiative that would address the issues involved in setting up drug-free workplace programs. There had been numerous reports of attorneys whose clients were interested in considering such programs, but who were unfamiliar with the legal aspects of setting one up. With the assistance of the National Drugs Don't Work Partnership, the George Meany Center for Labor Studies, and the General Electric Foundation, the ABA sponsored a symposium on drugs in the workplace held at the George Meany Center for Labor Studies in Silver Spring, MD, from October 21-23, 1994, to discuss what such attorneys needed to know.

National experts from the legal, medical, and regulatory communities came together to try to inventory the various practical problems involved in establishing a drug-free workplace program (DFWP). The individuals involved included defense, corporate, union, and plaintiff attorneys, as well as members of the medical community, legal scholars, and labor arbitrators and mediators. A list of attendees is included in the Appendix. With such a diverse group of individuals, there were obviously many points of view both on the utility of DFWPs and on which types of DFWPs were most effective. No attempt was made to encourage participants to come to agreement on such matters, for that was not the purpose of the meeting.

The meeting was prompted by the following concerns: In many cases DFWPs are a fait accompli because they are legally mandated or because senior corporate officers have decided that there is a need for them. These programs have, by and large, been adopted by larger employers who have the benefit of specialized counsel, both in-house and outside, as well as experienced human resource practitioners and other staff and consultants. For medium-sized and smaller companies, however, such expertise is not always as readily available, particularly where their legal advisors of necessity provide a broad range of general legal assistance rather than specialized labor and employment law counseling.

Since the impetus for DFWPs extends to such companies, it is in the best interests of all concerned for their legal advisers to have a resource to help the advisers themselves understand the range of the issues involved in deciding whether to have a DFWP at all and, if so, what kind. Since legal specialists involved with the larger companies in this country on various sides of the issue have had a number of years of experience with DFWPs, now is an appropriate time to attempt to collect what has been learned and disseminate the results as widely as possible, for the benefit of all.

This publication distills the dialogue at the symposium into a usable overview of the factors to be considered in establishing an effective DFWP. The issues discussed extend beyond the legal sphere into the area of policy and judgment. Not every action that is strictly "legal" is effective in every workplace. There are matters of corporate culture which must be taken into account, as well as the operative motivations for establishing a DFWP in a specific workplace-such as rehabilitation, compliance with legal mandates, protection from lawsuit, etc.-for different motivations result in different programs. The practical issues of cost-benefit analyses also are touched on. It is hoped that even experienced practitioners in the field may find something of use in the pages following.

Although the discussion is intended for use by attorneys on all sides of the issue, by necessity much of it is directed to attorneys who advise employers in establishing and implementing such programs, since they have the capability to anticipate and forestall many of the problems that other attorneys otherwise are forced to deal with later on. The public sector is not addressed to a great extent, since discretion in designing DFWPs tends to be relatively limited in that arena. There has been no attempt to duplicate the coverage of the various legal treatises and other writings in this area; instead, readers are referred to those in the Bibliography.

While we have attempted to explore all possible problem issues which may be encountered and to delineate the pitfalls about which all attorneys should be concerned, we need to put all of this into perspective. The fact is that in the last 15 years a very significant proportion of mid-size and large corporations in America have successfully implemented drug-free workplace programs.

It is hoped that this document will increase the number of attorneys having an understanding of the legal issues involved in establishing and operating a DFWP. Further information and assistance is available from the ABA's Section of Labor and Employment Law or from the ABA Standing Committee on Substance Abuse. They can be reached at the following addresses:

Section of Labor and Employment Law
American Bar Association
750 North Lake Shore Drive
Chicago, IL 60611
TEL: 312/988-5813, FAX: 312/988-5814

ABA Standing Committee on Substance Abuse
American Bar Association
740 15th St., NW
Washington, DC 20005-1009
TEL: 202/662-1784, FAX: 202/662-1787

We wish to express our appreciation to the Special Committee on Drug Use in the Workplace of the Section of Labor and Employment Law, which was formed to help organize the symposium and prepare this monograph. The Special Committee was co-chaired by Christopher Barreca, Bernard King, and Wayne Outten. We would also like to express our appreciation to the editorial board members who worked tirelessly to revise and edit this document. They are: Christopher Barreca, Jana Howard Carey, Bruce Cohen, Tim Darby, Robert Dohrmann, Bill Kaufman, Bernard King, and Wayne Outten. Tim Darby, Acquisitions Manager for Labor and Employment Law, The Bureau of National Affairs, Inc., Gloria Danziger, Staff Director of the ABA Standing Committee on Substance Abuse, and Michael Walsh, president of The Walsh Group, went above and beyond the call of duty to provide us with invaluable assistance and guidance. In addition, Mark Mallery provided significant expertise in preparation of the final document.

We also owe a debt of gratitude to the symposium facilitator, Susan Beauregard of the General Electric Corporation. Facing a situation that was rife with potential conflict, she skillfully elicited a compelling and productive discussion. The spirit of collaboration which she helped to instill in the symposium attendees helped carry us through many months of refining the initial dialogue into a usable document. We also want to thank the editors of this monograph, Tia Schneider Denenberg and Dick Denenberg, who devoted countless hours and unswerving patience to completion of this document.

The views expressed herein do not necessarily represent the views of the American Bar Association, its Section of Labor and Employment Law, or its Standing Committee on Substance Abuse, or any other organization, but are simply the collective, but not necessarily the individual, views of the authors.

Donald P. MacDonald
Chair v Christopher A. Barreca
Chair-Elect
Bernard T. King
Past Chair
ABA Section of Labor and Employment Law

R. William Ide III
Chair
John P. Driscoll, Jr.
Immediate Past Chair
ABA Standing Committee on Substance Abuse

May 1996

Contents

Preface v

Chapter 1

Deciding Whether to Create a Drug-Free Workplace Program (DFWP) 1

1. What is a Drug-Free Workplace Program? 1
2. Choosing a Policy 2
3. Sources of Information About the Need for a DFWP 2

Chapter 2

Choosing a Strategy: Legal Issues 5

1. Federal or State Obligations to Create a DFWP 5
   1. Federal Requirements for the Transportation Industry 6
   2. Federal Requirements for Other Industries 7
   3. Federal Requirements for Contractors And Grantees 7
   4. State Law Supporting DFWPs 7
2. Direct Federal or State Regulation of Drug Testing 8
   1. Federal Law 8
      1. Guidelines of the National Institute on Drug Abuse 8
      2. The National Labor Relations Act 8
      3. Other Federal Requirements 8
   2. State Law 8
      1. Preemption 8
      2. State Constitutions 9
      3. Statutory Law 9
      4. Case Law 10
3. Issues That Arise When There is a Union 11
   1. Drug and Alcohol Testing as a Mandatory Subject of Bargaining 11
   2. Union Challenges via Grievance Arbitration 12
      1. Challenges to the Policy as a Whole 12
      2. Challenges Based on Effect on an Individual 12
      3. Off-Duty Versus On-Duty Conduct 13
4. Challenges to DFWPs Based on Claims of Individual Employment Rights 14
   1. Federal Constitutional Claims 14
   2. Federal Statutes 15
   3. State Constitutional Claims 16
   4. State Statutes 16
      1. Disability 16
      2. Legal Off-Duty Activities 17
      3. Workers' Compensation 17
      4. State Family and Medical Leave Acts 17
   5. Common Law Actions 17
      1. Unjust Dismissal/Wrongful Discharge 17
         1. Implied Covenant of Good Faith and Fair Dealing 17
         2. Implied Contract 18
         3. Public Policy Exception 18
      2. Negligent Drug Testing 18
      3. Negligent/Intentional Infliction of Emotional Distress 18
      4. Defamation 18
      5. Common Law Right to Privacy 19
   6. Complying with Privacy/Confidentiality Requirements 19

Chapter 3

Choosing a Strategy: Discretionary Issues 22

1. Scope of Policy: Defining Prohibited Behavior 22
2. Consensus Policy Development 23
3. Choice of Monitoring Techniques 23
   1. Biochemical Testing 24
   2. Impairment Testing 25
   3. Supervisory Monitoring 26
4. Benefits and Drawbacks of a DFWP 26

Chapter 4

Designing and Operating a Biochemical Testing Program 29

1. Structuring a Testing Program 29
   1. . What is The Employer's Purpose in Testing? 29
   2. B. What Procedures Should Be Followed? 29
      1. Government-Mandated Testing 29
      2. Non-Mandated Testing 31
         1. For Which Drugs Will the Employer Test? 31
         2. What Will the Employer Do With the Test Results? 32
         3. What Collection Procedures and Analytical Technology Best Suit the Needs of the Company? 32
            1. Choice of Laboratories and Processes 32
            2. On-Site Testing 32
            3. Selection of Specimens 32
   3. How Much Is the Employer Willing to Pay? 33
   4. How is Success Measured? 34
2. Structuring a Drug-Testing Component of a DFWP-An Example: Employer X 34
   1. Occasions for Testing 34
      1. Upon Application for Employment 34 OL TYPE=a>
      2. ADA Implications 34
      3. Scope of Applicant Testing 35
   2. Employee Probationary Period 35
   3. After Probation 35
      1. Employees in Safety, Health or Security Sensitive Positions 35
      2. Testing For Cause 35
      3. Fitness for Duty 35
      4. Rehabilitation and After-Care Monitoring 36
      5. Post-Accident 36
      6. Other Workplace Incidents 36
      7. Random, Unannounced Testing 36
      8. Testing Mandated by the Departments of Defense or Transportation 36
         1. DOT Regulations 36
         2. DOD Regulations 36
      9. Testing Mandated by Other Federal or State Agencies 37
   4. Peer Support Committee 37
3. Using Test Results to Justify a Personnel Decision 37
   1. Establishing the Chain of Custody 37
   2. Proving Accuracy and Reliability 38

Chapter 5

Providing for Rehabilitation and Recovery 40

1. Treatment Issues 40
   1. Pattern of Intervention 40
   2. Identifying a Need for Treatment 41
   3. Notice of Treatment Options 41
2. Implications of Opportunity for Treatment 41
   1. Completion of Treatment 42
   2. Relapse After Drug Treatment 42
   3. Evidence of Rehabilitation as a Mitigating Factor 42
   4. Last Chance Agreements 43
3. Public Health Policy Considerations 43

Appendix
Symposium Participants 45

Bibliography 47

Books 47
Manuals 48
Articles 48
Reports 51

Newsletters 51
Information Services

51

Exhibits and Tables

Exhibit 1-1. DFWP Checklist 4
Table 3-1. Benefits and Drawbacks of a DFWP. 27
Table 4-1. The Terminology of Testing 30

Chapter 1

I. What is a Drug-Free Workplace Program?

While substance abuse was at one time associated only with inner-city neighborhoods and those living on the fringes of society, it is now widely acknowledged as pervasive. Even in the business setting, from the toolroom to the boardroom, substance abuse has become a major concern. While there is disagreement about the magnitude of the problem, there is widespread agreement that it is too big to ignore. There is also widespread agreement that employers are not immune from the problems of substance abuse, and that employers ought to establish and implement a policy.

Business executives, government officials, employers and employees have become increasingly attentive to the problems of drug and alcohol abuse. Although illicit drug users represent only a small proportion of the full-time workforce, they can create significant safety hazards, not to mention the potential for disrupting the workplace, demoralizing co-workers, and demanding a disproportionate share of supervisory and health care resources.

Given the potential dangers, more and more employers are considering Drug-Free Workplace Programs (DFWPs) of one kind or another. Many large businesses have adopted comprehensive DFWPs, although most medium and small businesses have not done so. A DFWP may consist of one or many different components, ranging from a simple policy forbidding the use of mind-altering substances in the workplace to sophisticated programs that offer supervisory training, employee education, drug testing, treatment referral, and return-to-work monitoring.

In general, a well-designed DFWP involves a comprehensive description of the prohibited behavior, along with notice of the penalties for violations and the options for rehabilitation and recovery. Employees are notified of the substances covered and the means used to monitor compliance. The employer makes clear the extent to which a worker's off-duty behavior may be covered. Access to educational or counseling services and an Employee Assistance Program (EAP) are also provided. Drug testing may be an important component of a DFWP. Testing raises specific issues that should be considered prior to initiating the testing. A list of questions which may be considered in the course of developing a DFWP is included in Exhibit 1-1 at the end of this chapter. The various concerns are discussed in greater detail later in this monograph.

II. Choosing a Policy

The first step in developing a policy is to decide whether to have a DFWP. Some employers may choose instead to judge employees simply on the basis of performance. Once a company has made a basic policy choice, it can consider in more detail the objectives it intends to achieve. There are a variety of possible motivations for pursuing such a program:

1. Complying with legal requirements. Under federal law, some employers are required to establish DFWPs, including engaging in drug (and possibly alcohol) testing. See "I. Federal or State Obligations to Create a DFWP" in Chapter 2.
   
2. Reducing liability risks. Having a DFWP may be viewed as assisting in the defense against certain legal actions, although DFWPs may also generate other kinds of claims. See Chapter 2.
   
3. Reducing business costs due to accidents, absenteeism and ill health. Eliminating drug use is seen as a way to promote safety and efficiency, improve the health of the workforce and curtail use of sick leave, medical benefits and workers' compensation.
   
4. Ensuring the integrity of employees. A potential cause of theft, pilferage and blackmail is removed, and workers' confidence in each other is enhanced.
   
5. Determining fitness for duty and corroborating evidence of misconduct. A DFWP may help establish uniformity in standards of behavior and in discipline imposed. To establish the DFWP the employer must determine the proper balance between punitive and rehabilitative elements of the program. Being identified as substance abuser may lead to discharge, but there may also be an attempt at rehabilitating employees and returning them to duty.
   
6. Assuring public confidence in the business. The employer prevents embarrassment by taking genuine steps to deal with employees who are affected by substance abuse.
   
7. Promoting a "drug-free" society. Many employers, seeing themselves as responsible members of society, sense a moral obligation to support law enforcement efforts against illicit drugs. NIDA has stated its "belief that the fight against illegal drugs in the workplace is critical to the nation's war against drug use." It has encouraged private employers to adopt DFWPs.

III. Sources of Information About the Need for a DFWP

In deciding whether to adopt a DFWP, attorneys advising employers may find it beneficial to collect data about the precise needs of the industry and enterprise at issue. The information gathered may affect an advisor's (and employer's) assumptions and motivations, and it may influence the choice of strategies. Below are some possible sources of information:

• National or regional studies on prevalence of substance abuse and types of chemicals implicated. U.S. Department of Health and Human Services surveys and reports by the Institute of Medicine are examples.
  
• Data from local agencies that deal with substance abuse, health or law enforcement.
  
• Background provided by treatment facilities or chapters of the Employee Assistance Professionals Association and the National Council on Alcoholism.
  
• Reports by business, industry or trade associations.
  
• Opinions of individuals in those segments of the organization most affected: human resource managers, benefits and medical personnel, security managers, medical staff, training specialists, legal advisers, grievance handlers and union representatives. Unrepresented employees could be surveyed by means of questionnaires. The company might take into account recent experience, such as statistics on theft, safety records, or rates of absenteeism, sick leave use and medical insurance/disability claims (although these phenomena may have causes unrelated to drug use).
  
• Information from informants.
  
• Evaluations of the company's production environment and the character of the workforce. Is there factual evidence of drug use? Does it affect the company's productivity or product quality? Which drugs are implicated?
  
• Estimates of the cost of training, rehabilitation, testing and program administration.
  
• Assessments of the community relations aspects of the business.

Exhibit 1-1. DFWP Checklist

1. What is our current company policy regarding the use of alcohol and other drugs?
2. How much of a drug or alcohol problem does our company have at the present time?
3. What is the nature of the problem (absenteeism, quality, productivity, safety, etc.)?
4. How much does this problem cost the company?
5. What type of DFWP would be most likely to improve the situation?
   1. urine testing
   2. impairment testing
   3. under the influence testing
   4. better supervision and quality control
   5. Employee Assistance Plan
   6. a combination of the above
6. If testing is involved, who will be tested?
   1. applicants
   2. employees in safety sensitive positions
   3. all employees
7. Under what circumstances will testing be done?
   1. pre-employment
   2. for cause
   3. random
   4. combination
8. What will be done with those who fail the test?
9. What action will be taken regarding those who refuse to be tested?
10. What would be the costs of such a program?
11. What would be the benefits? How much would the problems described in 3 & 4 above be reduced by the program? How great is the financial benefit of the reduction?
12. Do the projected benefits justify the costs?
13. Which proposed components of the DFWP are cost effective?
14. How do the company's employees feel about the proposed DFWP? Would they be more supportive of another option? Have we sought their input?
15. (If the company is organized) Has the proposed DFWP been negotiated with the union?
16. Is the proposed DFWP consistent with company values?
17. Is the proposed DFWP legal in the jurisdictions where it will be implemented?

Chapter 2

Choosing a Strategy: Legal Issues

When the decision is made to adopt a DFWP, the question arises: What kind of DFWP should the employer establish? To answer this question, the employer first must articulate its priorities and goals. Then it must decide on an approach, or strategy, to achieve those goals. Although attorney advisors may help employers define the reasons for a drug policy and articulate priorities and goals, they can be most useful in helping them select the appropriate strategy. Factors which should be considered when assisting an employer in choosing a strategy include legal issues, which are discussed in this chapter, and discretionary matters, which are discussed in the next chapter. (The discussions focus on the private sector; additional issues may be germane to a public sector workplace.)

A DFWP may entail potential legal obligations and liabilities of various kinds, depending on the nature of the workplace, the degree to which the business is regulated by federal and state law, and whether the employees are represented by a union. For some employers, no clear guidelines are applicable. Other employers are legally obligated to implement a DFWP of a particular kind; there may be penalties and liabilities, including loss of business opportunities, in the event of non- compliance. The risk of liability can be minimized, however, by an attorney who tailors the DFWP to the legal requirements, and also periodically reviews the DFWP to ensure that it responds to changes in the law. In all aspects of DFWPs, the law is still evolving.

While no implementation strategy is completely free of legal risk, some strategies raise greater risks than others. Attorneys advising employers should therefore consider not only the specific legal risks raised by particular programs, as discussed below, but also the general level of legal risk to which an employer is willing to expose itself.

I. Federal or State Obligations to Create a DFWP

The following is a guide to determining whether a business is governed by a federal or state law or regulation that requires or encourages a DFWP. The reader should check in each instance to see whether drug testing in particular is required as a component of the program.

A. Federal Requirements for the Transportation Industry

If the employer is involved in inter-state or intra-state transportation, the attorney will need to consult the U.S. Department of Transportation Rules, which cover safety-sensitive employees in commercial transportation. The DOT regulations require that transportation workers in safety-sensitive jobs be subject to five types of drug testing: pre-employment, random, reasonable cause, periodic and post-accident. As regards post- accident testing, the regulations require private-sector employers to test employees for the presence of drugs or alcohol in transportation-related safety sensitive jobs when they become involved in "reportable accidents." DOT defines a "reportable accident" as one causing or potentially causing:

• Death of another person.
• Injury to an employee and/or another individual.
• Damage in excess of a pre-determined dollar amount to
  • The employer's property
  • The property of others.

The DOT rules are implemented according to mode of transport by various agencies as follows:

• Aviation (Federal Aviation Administration)-Flight crews, attendants, traffic control-lers; aircraft dispatchers; maintenance workers; ground security coordinator personnel. See Federal Aviation Administration Anti-Drug Testing Rules (14 C.F.R. Parts 61, 63, 65, 121 and 135).
• Commercial Motor (Federal Highway Administration)-Drivers (commercial drivers license holders). See Federal Highway Administration Controlled- Substances Testing (49 C.F.R. Part 391).
• Railroad (Federal Railroad Administration)-Hours of Service Act employees; engine, train and signal services employees; dispatchers; operators. See Federal Railroad Administration Controlled-Substances Testing (49 C.F.R. Parts 217, 219, and 225).
• Mass Transit (Federal Transit Administration) -Vehicle operators; controllers; mechanics; and armed security personnel. See Urban Mass Transportation Adminis-tration Control-of-Drug Use Rules (49 C.F.R. Part 653).
• Pipeline (Research and Special Programs Administration)- Operations, maintenance and emergency response personnel. See Research and Special Programs Administration Control-of-Drug Use Rules (49 C.F.R. Part 199).

o Maritime (U.S. Coast Guard)-Crew members operating a commercial vessel. See Coast Guard: Drug and Alcohol Testing Rules (46 C.F.R. Part 16).

B. Federal Requirements for Other Industries

• Nuclear Regulatory Commission-Fitness for Duty Programs (10 C.F.R. Part 26).
• Department of Energy-Workplace Substance Abuse Programs at DOE Sites (10 C.F.R. Part 707).
• NASA-Civil Space Employee Drug/Alcohol Testing Act of 1991 (Pub. L. No. 102-195, §21).

C. Federal Requirements for Contractors And Grantees

The Drug-Free Workplace Act of 1988 applies to all federal grant recipients and those businesses having contracts with the government worth more than $25,000. It requires them to:

• Strive to maintain a drug-free workplace.
• Develop and publish a written anti-drug policy and ensure that employees read and consent to the policy as a condition of employment.
• Initiate an awareness program to educate employees about the dangers of drug abuse, the penalties for violations of the policy, and the available counseling and treatment programs.
• Require employees to report any conviction for a drug offense in the workplace. Within 30 days of being so informed, employers must take appropriate personnel action or require participation in a drug abuse rehabilitation program.

The act neither requires nor prohibits drug testing of employees. The original regulations promulgated under the Act were published in the Federal Register of May 25, 1990.

D. State Law Supporting DFWPs

State law may mandate or support DFWPs in various ways as noted below. Needless to say, both statutes and case law must be consulted for each state.

• Mandated Testing. Some states require certain employers to test certain types of employees (school bus drivers, for example) for specified drugs. See "II.B.3. Statutory Law" in this chapter below.
• Insurance Premiums. Some states, such as Florida and Georgia, provide incentives, in the form of reduction of worker compensation insurance premiums, for implementing DFWPs.
• Unemployment Benefits. Most states deny unemployment benefits for misconduct if an employee is discharged for a positive drug test result or for drug or alcohol use.
• Workers' Compensation. Most states deny workers' compensation benefits to employees who are injured as a result of abusing drugs or alcohol, or who tested positive for illegal drugs or alcohol.

II. Direct Federal or State Regulation of Drug Testing

Drug testing is only one component of a DFWP, and not every DFWP contains a drug testing component. Nonetheless, drug testing remains the most highly regulated and controversial aspect of a DFWP, as outlined below. Failing to follow the specific procedures required by the regulations may furnish a source of challenges to the testing program. Other sources of challenge to a drug testing program, and to other elements of a DFWP, are discussed in this chapter below, under "III.B. Union Challenges via Grievance Arbitration" and "IV. Challenges to DFWPs Based on Claims of Individual Employment Rights."

A. Federal Law

1. Guidelines of the National Institute on Drug Abuse

   NIDA Guidelines regulate testing undertaken pursuant to federal law. (See Chapter 4, "I. Structuring a Testing Program" for information on the specific requirements.)

2. The National Labor Relations Act

   The National Labor Relations Act governs development of a DFWP in a workplace subject to a "private sector" collective bargaining agreement, including drug testing components. See "III. Issues That Arise When There Is a Union" in this chapter below.

3. Other Federal Requirements

   See also the discussion of federal testing requirements under "I. Federal or State Obligations to Create a DFWP" in this chapter above.

B. State Law

A drug testing component of a DFWP may be subject to state statute. Several states have enacted statutes with various approaches, resulting in a legislative patchwork from which no clear trend emerges. Some states have sought to expressly authorize private workplace testing, others to restrict it. In the former category are laws that recognize an employer's right to require testing as a part of a DFWP. Virtually all state law on the subject regulates or limits the testing in some way, rather than prohibiting it across the board. A more detailed discussion of the various aspects of regulation appears below.

1. Preemption

Because of the expansion of federal anti-drug activity, there has been a tendency for federal policy to sweep aside inconsistent state enactments. State law may be superseded in one of several ways:

• A state law regulating testing may specifically exempt testing required by federal law.
• Federal law and regulation may expressly pre-empt state law.
• Federal law and regulation may be held by courts to pre- empt state regulation implicitly, particularly in fields such as air transportation, where federal authority clearly plays an exclusive, dominant or regulatory role.
• In unionized workplaces, the National Labor Relations Act may be held to take precedence over state drug testing laws, thereby reserving the matter to collective bargaining.

2. State Constitutions

There may be a state constitutional right to privacy, which may affect various aspects of a drug testing component of a DFWP. See "IV.C. State Constitutional Claims" in this chapter below.

3. Statutory Law

The following are examples of state statutory and case law that employers should consider when creating a drug testing component of a DFWP. The listing of state abbreviations in an entry indicates that there are statutes or cases in that state of the type described in the entry. State legal requirements that may apply more broadly to the various components of a DFWP, including drug testing, are discussed in "IV. Challenges to DFWPs Based on Claims of Individual Employment Rights" in this chapter below.

Attorneys must check to see if there is a statute pertaining to drug testing in each state at issue. If so, they then must determine whether the statute is permissive, mandatory, or restrictive.

• Permissive: In most states, employers are free to test employees and applicants for drugs. Some states (AZ, UT) even provide protection from liability to employers who make employment decisions based on drug tests if they comply with the statute's mandates.
• Mandatory: Some state statutes (AK, DE, SD) mandate that employers test employees in sensitive positions, such as school bus drivers.
• Restrictive: While no state statute prohibits all workplace drug testing, some statutes require individualized suspicion (CT, RI, IA, ME, MT, VT) and some prohibit random testing (RI, IA, MT, VT). Accident and theft investigations may be expressly mentioned as allowable occasions for testing. Some states may permit pre-employment testing of job applicants but prohibit random testing of employees who have already been hired.

Many statutes set forth procedures to protect the interests of both the employer and employee. Such a statute may:

• Require an employer to offer rehabilitation and treatment as part of the DFWP through an Employee Assistance Program whether employees are identified through drug testing or through other means (IA, ME, VT, OK).
• Mandate policy components.
• Control the timing or costs of testing.
• Provide employee the right to a retest or to rebut test results.
• Prohibit discipline before a confirmatory test.
• Require annual reports and reinstatement provisions.

Statutes may specifically regulate the laboratory procedures for drug testing. These may require any or all of the following:

• Confirmatory testing.
• Chain-of-custody procedures.
• Certification.
• Split sampling.
• Review of results by a Medical Review Officer (MRO).
• A state or federal certification of testing facilities (HI, LA, MD, NC, OR).
• Regulation of clinical laboratories as regards workplace drug testing.
• That the test sample be provided in private outside the presence of other persons (MA, CT, RI).

Regulations also may be issued under the various state laws.

There may also be a state human rights act or anti- discrimination law that covers employees with mental or physical disabilities (IL, IN, KS, LA, MA, NY). Most state statutes mirror the Americans with Disabilities Act which expressly provides that a current drug user is not a qualified individual with a disability. Moreover, many state statutes allow employers to adopt drug testing policies and to prohibit employees from using illegal drugs. Some states (OH, NY) have construed their statutes as protecting drug addicts, although the employer still is entitled to discharge an employee whose chemical dependency adversely affects job performance.

4. Case Law

State contract law and tort law claims have been brought against private employers conducting DFWPs, in some instances resulting in various restrictions on employers' freedom to test. These principles are discussed in "IV.E. Common Law Actions" in this chapter below.

III. Issues That Arise When There is a Union

A. Drug and Alcohol Testing as a Mandatory Subject of Bargaining

If the workforce is unionized, there is an obligation to bargain with the union when a testing program covering current employees is introduced. The National Labor Relations Board has established that drug and alcohol testing is a mandatory subject of bargaining under the Labor Management Relations Act (LMRA). In Johnson-Bateman Co., 295 N.L.R.B. No. 26, 131 L.R.R.M. (BNA) 1393 (1989), the Board reached this decision because, it said, drug/alcohol testing of current employees was not a part of the "class of managerial decisions that lie at the core of entrepreneurial control" in that such testing "does not involve the commitment of investment capital and cannot otherwise be characterized as a decision taken with a view toward changing the scope and nature" of the enterprise.

In Star Tribune Div., 295 N.L.R.B. No. 63, 131 L.R.R.M. (BNA) 1404 (1989), issued at the same time, the Board found that testing of applicants as opposed to current employees was not a mandatory subject of bargaining because applicants are not employees within the meaning of the LMRA. The Board nevertheless found that the employer had violated the act because it had failed to provide information that the union requested concerning the drug and alcohol testing of applicants. The employer had a duty to disclose such information to the union, the Board found.

Employers covered by the Railway Labor Act also have a duty to bargain with the union when instituting a drug testing program. However, the precise point at which the duty arises depends on the nature of the parties' existing collective bargaining agreement, and whether the establishment of a drug testing policy is considered to create a major dispute or a minor dispute within the meaning of the Railway Labor Act. In the event of a major dispute, under Sections 5 and 6 of the Railway Labor Act (45 U.S.C. §§155 and 156) the parties undergo a lengthy process of bargaining and mediation. In the case of a minor dispute, under the Act, the parties undergo compulsory binding arbitration before the National Railroad Adjustment Board or an Adjustment Board established by the employer and the unions representing the employees.

The Supreme Court explained the difference between major disputes and minor disputes in Conrail v. Railway Labor Executives' Association, 491 U.S. 299, 131 L.R.R.M. (BNA) 2601 (1989). In Conrail, the court found that where a drug testing policy was "arguably justified" by the terms of the collective bargaining agreement, that policy created a minor dispute within the meaning of the Railway Labor Relations Act. The court noted that "the effect of this ruling, of course, will be to delay collective bargaining in some cases until the arbitration process is exhausted." 491 U.S. at 310, 131 L.R.R.M. (BNA) at 2605. Accordingly, whether there is arguable justification for the implementation of a drug testing policy under the parties' collective bargaining agreement or whether the issue is raised for the first time, the employer will have an obligation either to bargain over the policies with the union directly, or to arbitrate and then possibly bargain over the drug testing policies with the union. See Chapter 3, "II. Consensus Policy Development."

B. Union Challenges via Grievance Arbitration

Where a testing policy has not been bargained in advance with the union, a union may challenge it on several grounds by filing a grievance. The union can file an unfair labor practice charge based on the obligation to bargain, as discussed in "III. A. Drug and Alcohol Testing as a Mandatory Subject of Bargaining" above. As with any new company rule or policy, a testing policy may be challenged either as a whole when it is initially promulgated or in a specific instance when it affects an employee.

1. Challenges to the Policy as a Whole

In challenging the policy as a whole, the union first looks to whether or not the employer had an obligation to bargain over the creation of the policy prior to its implementation. The following questions arise:

• Does the contract contain a wrap-up or "zipper" clause waiving the union's right to bargain during the term of the collective bargaining agreement over matters not specifically covered by the contract, including drug testing? If so, was there a clear and unmistakable waiver of its right to bargain over a drug testing policy? If not, is the management rights clause broad enough to allow the company to institute new rules and policies such as the drug testing policy?
• If the company would have the general right under its management rights clause to institute a drug testing policy, is there some other explicit prohibition in the contract that would prevent the company from unilaterally implementing a drug testing policy, such as a provision requiring all safety, health or medical procedures to be referred to a joint safety or health committee?

2. Challenges Based on Effect on an Individual

The union may challenge a drug testing policy for the first time when a bargaining unit employee is adversely affected, that is, either subjected to some form of discipline or denied some benefit. The union's challenges to the drug testing policy may target both procedural and substantive aspects. Some questions that arise in this context include the following:

• Does the application of the drug testing policy violate the contract's just cause standard or nondiscrimination language?
• Was the employee denied access to union representation prior to drug testing? While an employee has no right to a union representative at a urine test, the employee has the right to consult with a representative prior to taking such a test.

If employees may be disciplined for refusal to take a test, or as a result of positive test results, the employee should be notified in advance both as to the consequences of a refusal or failure to take a test, and as to the possible discipline that may result from a positive test. Employees generally are obligated to work in accordance with an employer's orders, filing a grievance if they believe the orders are improper; otherwise, they risk being charged with insubordination. Yet some arbitrators have held that there is no insubordination involved in refusing to take a test even where employees were warned of the consequences of the refusal to take a drug test.

If a contract provides for progressive discipline for violations of company rules or policies, then that approach should be applied to violations of the drug testing policy. Any drug testing policy must be uniformly enforced. Failure to uniformly enforce such a policy may be viewed as discriminatory conduct, which may cause an arbitrator to reverse the disciplinary action taken against an individual.

When faced with a positive test result, the employee may challenge the testing procedures. Each step in the drug policy, from the collection of a sample to its storage, transportation, testing, and reporting of results, is subject to review. A majority of arbitrators require clear and convincing evidence of a violation of the drug testing policy, although others require only that an employer establish violations by a preponderance of the evidence. In order to raise doubts under either standard, the union will attempt to demonstrate either breaks in the chain of custody, or some other administrative or technical deficiency that calls into question the results of the test (see Chapter 4). If the union can demonstrate a deficiency in the test procedure, then discipline may not be upheld.

3. Off-Duty Versus On-Duty Conduct

A DFWP in a unionized workplace that seeks to affect so- called "recreational" or off-site use of illicit drugs may be challenged by a grievance leading to arbitration and may encounter the traditional arbitral distinction between on-duty and off duty spheres. By and large, an employee's off-duty conduct has been regarded by arbitrators as beyond the reach of the employer's disciplinary powers, a matter of purely private concern, except where it has a direct bearing on the employment relationship. There is little expectation that an employer will punish immoral, questionable or even illegal behavior during non- working hours. There must be a substantial relationship, sometimes known as a "nexus," between the off-duty misconduct and the employment's legitimate concerns.

In many instances, a plausible nexus between off-duty drug use and the employer's legitimate concerns may be found by an arbitrator. Such a nexus may be discerned when such drug use:

• Adversely affects an employee's job performance because there is a likelihood of impairment on the job. Some employers believe that any drug use off the job, even when casual, raises a suspicion of use on the job, although that connection is usually not made in the case of alcohol.
• Damages the employer's business reputation or community standing. Notoriety, result-ing in arrest or prosecution, may be especially harmful to the employer. But measuring damage may be highly subjective. Is there evidence of customer complaints? Was the employer subjected to unfavorable media attention or simply mentioned incidentally?
• Threatens the morale or welfare of fellow employees. Co- workers may be reluctant to work with a drug user or fear danger from him or her. This presumes that the fear and reluctance are reasonable responses.
• Disqualifies an employee from performing the duties of his or her job classification. Commission of a crime involving drugs could be considered as disqualifying for jobs that demand a law-abiding lifestyle-jobs in law enforcement, corrections and private security, for example. (The employer may, however, choose to defer action until an accused employee is actually convicted.) A conviction for driving a vehicle under the influence of alcohol or other drugs may represent a warning signal when an employee's job involves driving or using motorized machinery.

Relevant factors arbitrator consider include the following:

• How has the employer generally treated off-duty conduct?
• Is there a company rule against off-duty lawbreaking?
• Was the employee actually convicted of a crime?
• Was another employee victimized?
• Did the employee traffic in drugs? Trafficking-as opposed to possession-might create a presumption that the employee was likely to sell for profit at work.
• Was there an absence due to arrest that could be treated as a voluntary quit?

The employer's interest in off-duty drug use is more remote when it has no demonstrable effect on duty periods and does not lead to prosecution, notoriety or problems with other workers.

IV. Challenges to DFWPs Based on Claims of Individual Employment Rights

Employers are subject to a variety of potential challenges to their operation of a DFWP based on legal theories discussed below. These suits may be brought by individual employees or, in an organized workforce, by unions on their behalf. While there may be challenges to many parts of a DFWP, most challenges tend to be to drug testing programs, as discussed below.

A. Federal Constitutional Claims

The Supreme Court has decided that drug tests by public employers and private sector employers in certain heavily regulated industries constitute administrative searches under the Fourth Amendment to the United States Constitution, but it has declined to recognize a requirement for a warrant or individualized suspicion. In its two decisions on the issue, the Supreme Court upheld the suspicionless testing of private sector railway workers and some kinds of public employees. In Skinner v. Railway Labor Executives Association, 489 U.S. 602, 4 IER Cases (BNA) 224 (1989), the Supreme Court upheld against a Fourth Amendment challenge the Federal Railway Adminis-tration Regulations that mandated the testing of railroad employees involved in major train accidents, even where there was no individualized suspicion of drug or alcohol use, and permitted testing of railway employees for other incidents or rule violations in the absence of suspicion of on-duty impairment. In National Treasury Employees Union v. Von Raab, 489 U.S. 656, 4 IER Cases (BNA) 246 (1989), the Supreme Court upheld a Customs service plan requiring suspicionless urine testing of individuals seeking transfer to or employment in positions directly involved with drug interdiction or enforcement of related laws, and positions where the employee would be required to carry a firearm.

Private sector employers normally are not engaged in "state action" and thus do not trigger the search and seizure provisions of the Fourth Amendment. Nevertheless, some companies that are subject to intense federal regulation may be deemed to have been engaged in state action, with the result that their employees may be able to avail themselves of the same constitutional arguments against drug testing that are commonly used by public sector employees. For example, in Skinner, the drug testing of private railroad employees was covered by the Fourth Amendment because of the heavy regulation of the industry by the federal government through the Federal Railroad Administration. Other constitutional provisions that may be invoked are the Fifth Amendment rights to due process and protection against self-incrimination, and the "penumbra" of privacy rights. Employees have had little success in bringing claims based on such arguments.

B. Federal Statutes

Congress has passed several laws that directly or indirectly apply to workers employed by private companies and in some cases to public sector workers as well. Title VII of the Civil Rights Act of 1964, the Federal Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990, and The Family and Medical Leave Act of 1993, all provide civil rights for employees that may affect drug policies. In addition, the federal Employee Retirement Income Security Act (ERISA) may apply to any Employee Assistance Program (EAP) that is made a part of a drug program. These statutes are discussed in greater detail below.

Under Title VII, an employer cannot apply its drug testing program on a discriminatory basis (e.g., requiring only protected classes to submit to drug tests). Although an employee could claim that a non-discriminatorily applied drug testing program had a discriminatory impact on minorities, an employer would likely prevail by showing the test is job related and consistent with business necessity.

Neither the Americans With Disabilities Act (ADA) nor the Rehabilitation Act prevents an enterprise from refusing to employ a person who is currently engaging in the illegal use of drugs. Under the ADA, 42 U.S.C. §12111 (Definitions), the term "illegal use of drugs" means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act, 21 U.S.C. §812. On the other hand, the following are within the class of persons protected by both the ADA and the Rehabilitation Act:

• Former drug users who have successfully completed a supervised drug rehabilitation program or otherwise have been rehabilitated successfully and no longer engage in the illegal use of drugs.
• Participants in a supervised rehabilitation program, if they no longer illegally use drugs.
• Persons who are erroneously regarded as engaging in illegal drug use.

The Family and Medical Leave Act of 1993 applies to employees in companies employing 50 or more individuals, who have worked at least 12 months for the employer and for 1,250 or more hours. If they satisfy these prerequisites, employees can claim that their drug addiction or alcoholism is a "serious health condition," requiring time off for treatment and reinstatement after treatment. The FMLA, however, does not prohibit employers from testing employees for use of illegal drugs or from terminating employees for drug use.

Although these guarantees of civil rights and other benefits provide employees with fairly obvious avenues for challenging components of a DFWP, employees also might argue that mandated procedures have not been followed, citing to the appropriate federal laws or regulations discussed above in "I. Federal or State Obligations to Create a DFWP" in this chapter.

Additional legal issues may spring from yet another federal statute. According to the federal courts, "it is evident that the EAP [employee assistance plan] is an employee welfare benefit plan as defined by ERISA". In Re General Motors Corp., 3 F.3d 980, 984 (6th Cir. 1993). Therefore, any ERISA requirements that apply to such plans may also apply to an EAP created by the employer.

C. State Constitutional Claims

Ten states protect the right to privacy in their constitutions. In some states, notably California and Louisiana, private sector employees who have been discharged for refusing a drug test may challenge the employer by asserting some violation of a right to privacy. Drug testing implicates privacy in several ways:

• Exposure of the human anatomy.
• Forced extraction of bodily fluids.
• Compelled disclosure of medical information.
• Surveillance of off-duty activity.
• Dissemination of confidential test results.

To counter accusations based on a state constitutional right to privacy, employers generally argue a specific need, such as safety concerns, for knowing about employees' drug use.

D. State Statutes

1. Disability

   Almost all states have enacted statutes that protect disabled people from employment discrimination, including discrimination based on disability. Although each state's statute has its own particularities, most do not provide protection for current drug users. Protection may be provided, however, for people recovering from drug addictions. In the jurisdictions that protect recovering addicts, employers generally remain free to discipline or discharge employees whose recurring addiction adversely affects job performance. State disability discrimination statutes must be reviewed for questions of preemption by the federal Americans With Disabilities Act discussed above under "IV.B. Federal Statutes" in this chapter.

2. Legal Off-Duty Activities

   "Legal off-duty" statutes prevent employers from prohibiting lawful activities, such as alcohol consumption by a person of legal age, during an employee's personal time. The statutes do not restrict the extent to which employers can prohibit off-duty illegal activities, such as illicit drug use. Employers should be aware, however, that the statutes might be applicable in a challenge to a drug test that does not differentiate between legal products, such as prescription drugs, and illegal substances.

3. Workers' Compensation

   Most state workers' compensation laws do not compensate workers whose injuries are caused by drug or alcohol abuse. The employer bears the burden of proving the circumstances that trigger denial of compensation. The employees will seek to dispute the evidence that the injury was caused by drug or alcohol abuse. A positive drug test contemporaneous with the injury would help establish causation.

4. State Family and Medical Leave Acts

Some states have their own enactments dealing with family and medical leave, and the provisions may be more generous in some respects than the federal act. Where such laws exist, the employee would be entitled to the broader benefits and protection provided by the state laws.

E. Common Law Actions

1. Unjust Dismissal/Wrongful Discharge

In most states, employees are employed "at-will" and may be discharged for any reason, or for no reason at all. Some states have carved out exceptions to the doctrine of at-will employment, allowing suits for wrongful discharge based on assertions of an implied covenant of good faith and fair dealing, an implied contract or public policy considerations. Each theory is discussed below.

1. Implied Covenant of Good Faith and Fair Dealing

   Some courts have held that an employer is subject to an implied covenant of good faith and fair dealing in its treatment of its employees. Recognized by courts in California, Indiana, Massachusetts, Montana and North Dakota, the covenant theory has been invoked by plaintiffs seeking damages for drug testing. The decisions have not been consistent. Some courts have held for the plaintiff in instances where the employer did not give notice of the drug test or singled out a particular employee for testing. Other courts have held for the employer because the test served a valid purpose. The impact of the covenant theory has been limited, however, because most states have declined to apply it in the context of employment.

2. Implied Contract

   Employees seeking damages also have invoked the implied contract exception to the employment at-will doctrine. Courts generally have held that an employer's informal promises, especially those made during the hiring process, or statements in personnel policies or employee handbooks, can create implied contracts that limit the employer's common law right to discharge at will. An employee may argue that the employer impliedly promised not to test for drugs or not to discharge without just cause. An inaccurate drug test does not provide just cause, according to this theory. Employers who have disclaimed any implied contract and reserved the right to test for drugs are in the best position to defend against such claims.

2. Public Policy Exception 02

Finally, an employee may seek to recover damages for wrongful discharge by alleging that the employer's reasons for the discharge violated a clear mandate of public policy. The public policies that form the predicate for this tort have been found in federal or state constitutions, statutes, administrative regulations, and case law. Many courts have precluded wrongful discharge claims where the statutes relied upon already provide a remedy for the violation. Moreover, while some courts have viewed state constitutions as a source of public policy, others have discerned no protection for private sector employees, owing to a lack of "state action."

3. Negligent Drug Testing

In general, negligence may be claimed when there has been a breach of duty or failure to perform the duty according to a standard of conduct; a causal connection between the breach or failure and the resulting injury; and actual loss or damage. If a drug test is improperly conducted or improperly interpreted by either the employer or the laboratory, and if this error leads to loss of either present employment or the opportunity for employment, the employer may be exposed to a negligence suit. In order to succeed in a claim, an employee must provide sufficient evidence of improper conduct or test interpretation. To best defend themselves against such a claim, employers should take steps to ensure the accuracy of drug tests and follow chain of custody procedures, as explained in Chapter 4, "Designing and Operating a Biochemical Testing Program."

4. Negligent/Intentional Infliction of Emotional Distress

The tort of intentional infliction of emotional distress arises when someone, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to another. This is a difficult type of tort to prove, particularly since many jurisdictions require evidence of physical harm suffered. Employers can protect themselves against such claims by ensuring that their drug testing procedures comply with state and federal laws, and by conducting tests in a manner that protects the privacy of the individual and the confidentiality of the test results.

5. Defamation

Defamation requires publication, either written or oral, of information that would lower an individual's reputation in the community. Publicizing incorrect drug test results may provide a basis for a claim of defamation. Although slander actions usually require proof of special damages, there are exceptions for imputations of criminal activity and statements affecting an individual's business, trade, profession or office. Those exceptions might apply to a drug testing case involving a "false positive," a term defined in Table 4-1 in Chapter 4. Confidential statements transmitted within a corporation or transmitted to outsiders with a need to know may not, however, satisfy the publication requirement or may be covered by a qualified privilege.

A defamation action will likely fail if the employer and the testing laboratory are careful to report only the barest facts. As truth is a complete defense to defamation, a statement such as "the drug test showed an unacceptable level of a controlled substance in the employee's system" may convince a judge to issue a summary judgment for the employer.

6. Common Law Right to Privacy

Liability may result from intrusion into an area where an individual has a reasonable expectation of privacy when such an intrusion would be highly offensive to a reasonable person. Drug testing may constitute such an intrusion under the common law right to privacy, depending on the employee's expectations of privacy and the reasonableness of the procedure. Employers who inform their employees that they reserve the right to conduct drug tests in accordance with applicable laws will best protect themselves from privacy claims, since notified employees should no longer have a reasonable expectation of privacy with regard to drug tests.

Three specific types of invasions of privacy might be actionable.

• Public disclosure of true but private results, such as positive tests for prescription medicines.
• Intrusion into private space or activities where, for example, the urine specimen is not obtained in private.
• Disclosure of inaccurate information that placed the employee in a false light to the public.

F. Complying with Privacy/Confidentiality Requirements for Medical Records

Because of potential health issues involved, the presence of drugs in the workplace, and their effects, may sometimes give rise to medical privacy/confidentiality concerns. Viewed in the broader sense, few privacy interests are generally more sacred to employees than their own personal medical information. Historically, employers have obtained access to medical information about their employees in a variety of ways, including through pre-employment inquiries, pre-employment physicals, physical fitness tests, substance abuse tests, psychological profiles, workers' compensa-tion claims, employee assistance programs, and employer-provided health care.

Employee medical information has in the past been used for a number of purposes which then were accepted as legitimate, including for determining an employee's fitness for duty. The passage of the Americans With Disabilities Act (ADA), containing a) a general prohibition against employer medical inquiries, b) restrictions on medical examinations, and c) a prohibition against discrimination on the basis of disabilities, has created a myriad of new issues relating to medical privacy in the workplace.

The combination of the ADA, the Family and Medical Leave Act (FMLA), the Occupational Safety and Health Act (OSH Act), the Employee Retirement Income Security Act (ERISA), federal and state constitutional law, workers' compensation law, common law, and various state laws discussed earlier in this monograph has brought to the surface a broad spectrum of unresolved and uncertain medical privacy issues. Many of the privacy and confidentiality issues that arise in regard to DFWPs are the same as those that arise in regard to other employment-related activities, particularly where linked to an EAP. A complete discussion of such general concerns is not within the purview of this monograph. For a detailed discussion of these concerns, see the report on medical privacy in the workplace listed in the Bibliography.

Limiting the scope of medical privacy issues simply to the use and effects of drugs, however, establishes some general legal parameters, as outlined below.

• For example, the ADA provides that "a test to determine the illegal use of drugs shall not be considered a medical examination." Because drug tests are not medical examinations they may be given at any time, including at the pre-employment stage, and the results need not be stored in separate medical files and treated as confidential. A common feature of many drug testing programs is for the medical review officer to ask what medications the individual is taking, in order to account for the possible "cross reactivity" of lawful drugs with the illegal drugs to be detected by the drug test. Because it is unlawful to inquire about an individual's use of prescription drugs at the pre-offer stage, however, a possible problem arises in the use of pre- employment drug tests. The Equal Employment Opportunity Commission has chosen to address the problem in the following way in its "Guidance on Preemployment Disability-Related Questions and Medical Examinations under the ADA":
  • May an employer ask applicants about their lawful drug use if the employer is administering a test for illegal use of drugs?
    Yes, if an applicant tests positive for illegal drug use. In that case, the employer may validate the test result by asking about lawful drug use or possible explanations for the positive other than the illegal use of drugs.
    Example: If an applicant tests positive for use of a controlled substance, the employer may lawfully ask such questions as, "What medications have you taken that might have resulted in this positive test result? Are you taking this medication under a lawful prescription?"

• Under the Public Health Service Act, 42 U.S.C. §290ee-3, implemented by Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. Part 2, there are very strict criminal sanctions for unauthorized disclosure of such patients' records and information by facilities covered by this regulation.
• The regulations interpreting the OSH Act specifically exclude employee assistance program records or drug or alcohol treatment records from the definition of "medical records." The applicable regulation says: "Records concerning voluntary employee assistance programs (alcohol, drug abuse, or personal counseling programs), if maintained separately from the employer's medical program and its records," are not employee medical records. (29 C.F.R. §1910.20(c)(6)(II)(D))
• As discussed above in "I.A. Federal Requirements for the Transportation Industry" in this chapter, regulations have been issued by the U.S. Department of Transportation pursuant to the Omnibus Transportation Employee Testing Act of 1991, governing drug testing of safety-sensitive employees in the aviation, highway, rail and mass transit industries. The Department of Transportation regulations contain specific guidelines for addressing confidentiality issues.
• Most states and some localities have enacted laws governing workplace drug testing. See the discussion above under "IV.D. State Statutes" in this chapter. Many such laws contain confidentiality provisions.
• Common law theories may also provide protection to employees against disclosure and dissemination of information relating to employee drug testing and drug use. See above, "IV.E. Common Law Actions" in this chapter.

  Chapter 3

  Choosing a Strategy: Discretionary Issues

  Once the legal issues have been examined, the employer must define the basic goals and contours of the DFWP. Inasmuch as there are numerous options that would comply with the legal requirements the employer must follow, an exercise of managerial discretion is required in order to tailor the policy to the needs of each workplace. An attorney advising an employer should try to ensure that the employer is aware of the range of options and makes the decisions necessary in a thoughtful manner.

  I. Scope of Policy: Defining Prohibited Behavior

  A key consideration is likely to be the nature and variety of substances that are to be covered by the DFWP. The inclusiveness of the DFWP is logically a function of the needs and goals of each employer. If a primary purpose is to deter the use of illicit drugs and/or to support the "war on drugs," the list of prohibited substances will automatically include those drugs targeted by the government's own anti-drug programs: marijuana, opiates, cocaine, PCP and amphetamines. In some fields of employment, particularly law-enforcement, any involvement with such prohibited substances is automatically construed by an employer as a work-related offense.

  Alcohol, for example, is thought to be the most widely abused substance in modern industrial societies and a leading cause of industrial accidents. The U.S. Department of Transportation estimates that it is the cause of 13,000 accidents annually. Although many employers have been wary of testing for alcohol because they have no wish to interfere with employees' off-duty enjoyment of a legal beverage, insobriety in the workplace presents obvious dangers. Alcohol tests have now been added to federal screening programs, and the prohibited level has been set at a blood alcohol concentration of 0.04 percent-significantly lower than the official intoxication threshold in most jurisdictions (typically 0.10 percent). Since many illicit drug users are also heavy users of alcohol, alcohol abuse on the job may be a strong indication of other drug-related problems.

  In order to develop a program that meets the specific needs of an organization, it is important to be aware of the full panoply of substance abuse problems. One must remember, however, that, apart from alcohol testing required by law in some industries, regular workplace biochemical testing has generally been limited to illicit drugs, for both practical and legal reasons. One very practical reason is simply the expense involved in testing for every conceivable drug.

  II. Consensus Policy Development

  Because substance abuse threatens health and safety as well as worker productivity, it is logical to assume that employees have a stake in the success of a DFWP. It is important to harness the force of positive peer pressure in order to change dangerous behavior. Employees are more likely to enlist in the effort to detect and aid substance-abusing fellow employees when they regard the DFWP as fair. One way of ensuring a perception of fairness and a sense of "ownership" is to let the workforce participate in developing the DFWP. A DFWP that is the product of consensus, rather than a unilateral imposition, is also likely to minimize challenges.

  The employer should be aware that the National Labor Relations Board has set limits on the activities of employer/employee committees not directly linked to a union with exclusive bargaining rights. The employer must take that restriction into account when involving employees in the development of a drug policy, particularly since testing of current employees is a mandatory subject of bargaining under the National Labor Relations Act. This does not mean that there can be no employee involvement in policy development. It does mean, however, that employee "represen-tation" must be carefully thought out.

  In a unionized workplace, consensus sometimes takes the form of a joint agreement between the union and management, setting forth the scope of the DFWP, the disciplinary and rehabilitative options, and any testing requirements.

  III. Choice of Monitoring Techniques

  Many DFWPs call for some form of monitoring or surveillance. Before the organization adopts a methodology, it should review the goals for its program so that the methods chosen can be most compatible with the objectives of the policy. Some of these goals were set out in "II. Choosing a Policy" in Chapter 1.

  There is a wide range of methods for testing or otherwise maintaining surveillance of the workforce. These include, for example:

  • Testing for the presence of drugs in the body by sampling urine, blood, saliva, or breath.
  • Psychomotor, psychopathology and pupillary tests of impairment.
  • Supervisory, co-employee, agency and electronic surveillance.

  No method, however appealing, should be selected without the benefit of a timely review of the pertinent laws and regulations, as well as an examination of the efficacy and validity of each method. A "golden rule" of testing might be expressed as follows: Test others as you would want to be tested.

  Three basic methods of monitoring are discussed in greater detail below:

  • Testing for the presence of substances in the body.
  • Testing for psychomotor impairment.
  • Supervisory monitoring.

  Each will be viewed from opposing perspectives to elucidate the conflicting considerations.

  A. Biochemical Testing

  A common implementation strategy is use of biochemical tests, particularly those which are performed on samples of the individual's urine. A positive result indicates that the person has used the chemical in question in the relatively recent past. It does not necessarily indicate impairment or current fitness for duty or ability to work safely-i.e., whether that individual is under the influence of drugs at the time of the test. Nor does it indicate whether the substance was used on or off the job.

  Opponents of biochemical testing deny that there is convincing evidence of economic or social benefits from its adoption and assert that the primary motive for such testing is law enforcement via the employer. According to this view, biochemical testing has no relationship to job performance and amounts to a policy of refusing to employ anyone who uses illegal drugs, even a casual, off-duty user who is not impaired on the job.

  Biochemical testing is defended by others as an effective, reasonable and common medical procedure that can help determine the presence of potentially hazardous illicit drugs in the workplace. The defenders cite numerous studies that purport to show noteworthy economic and social benefits for drug testing with respect to both deterrence and rehabilitation (see box).

  Battle of the Studies

  Both opponents and proponents of drug testing commonly cite studies conducted by the U.S. Postal Service and the military as evidence pertaining to the issue of efficacy. The studies are reported in Drugs in the Workplace: Research and Evaluation Data (NIDA Research Monograph 91), HHS Pub. No. (ADM) 89-1612, l989. A comprehensive review of such studies was been undertaken by the National Research Council and Institute of Medicine, which are affiliates of the National Academy of Science. A central conclusion is that more empirical research is needed. See Under the Influence? Drugs and the American Workforce, National Academy Press, 1994.

  B. Impairment Testing

  Using a device similar to a video game, impairment testing focuses on a person's current fitness for duty and ability to work safely. In one version, known as the "critical tracking test," the subject uses manual controls to maintain a pointer's position between two dots as the movement of the pointer becomes increasingly unstable. The test measures psychomotor skills, hand-eye coordination and mental acuity or alertness. The results are compared to the employee's personal baseline score, representing an average of his or her past scores. The test reveals diminished capacity to perform a job, although it does not reveal the source of the impairment. Another version of the test, which focuses on mental capacity, checks for:

  ¨ Number sequence reproduction.

  ¨ Reading comprehension.

  ¨ Arithmetic.

  ¨ Pattern recognition.

  ¨ Short-term memory.

  Those who support impairment testing (also called psychomotor testing) as an alternative to biochemical testing claim that impairment testing has some notable advantages over biochemical testing in ensuring safety. Biochemical testing is episodic, and it may take days to analyze the samples. If the employee is seriously impaired, an accident may occur before the results are available. Impairment testing, in contrast, can be used on a daily basis to provide an immediate indicator of unfitness for duty, triggering removal from service before an accident occurs.

  Impairment testing, it is claimed, may be particularly useful where there is a substantial safety risk, as in the case of airline pilots or school bus drivers. Unlike biochemical testing, moreover, impairment testing identifies those who cannot perform their job safely for any reason: the current effects of legal medications, alcohol abuse, illness or fatigue are also revealed. The ability to detect impairment from many sources is especially significant in light of findings, in such industries as commercial trucking, that fatigue may be more responsible for fatal accidents than illegal drug use. (See Safety Study on Fatigue, Alcohol, Other Drugs, and Medical Factors in Fatal-to- the-Driver Heavy Truck Crashes, National Transportation Safety Board, 1990.)

  It is also claimed that impairment testing eliminates worries about fraud or tampering, and promises to be cheaper than biochemical testing. In addition, according to some experts, impairment testing is less intrusive than sampling body fluids and raises no privacy concerns, since there is no attempt to probe into the employee's off-duty activities.

  Those who consider psychomotor testing an unrealistic alternative to urinalysis observe that daily impairment testing is time-consuming and often physically impractical. Moreover, psychomotor testing is not a viable alternative, in their view, because it may detect impairment yet fail to identify the cause. An employer might be considered irresponsible if it neglected to ascertain the cause of work-related impairment. Moreover, if no cause was identified, the employer could not impose discipline for violation of the drug policy or offer rehabilitation. Impairment testing could, however, be a valuable adjunct to biochemical testing, particularly in safety-sensitive jobs such as airplane pilot.

  C. Supervisory Monitoring

  The quality and quantity of an employee's work is constantly monitored by a number of techniques. These surveillance methods may include, for example, supervisory, electronic, video and agent observation, co-employee reporting and physical searches. It is possible to utilize such existing monitoring systems, or some enhanced version of them, to identify use of illicit drugs or alcohol or substance-related impairment on the job as well as degraded job performance due to substance abuse.

  Those who support supervisory monitoring as an alternative to biomedical testing claim that such monitoring eliminates the need for drug testing, minimizes some potential legal liabilities, avoids unnecessary intrusiveness and identifies any employee whose work needs improvement, whether because of substance abuse or some other reason. This approach, it is asserted, is obviously best suited to a policy whose goal is eliminating use of drugs at work or being under the influence while at work, particularly if the employer is concerned about the influence of alcohol and prescription or over-the-counter drugs in addition to the influence of illegal drugs.

  Others agree that supervisory or other proper surveillance methods can be an important part of a comprehensive program, which includes supervisory training, employee education, identification of drugs, employee rehabilitation and discipline. But they do not regard supervisory monitoring as a realistic alternative to biochemical testing. By itself, they assert, such monitoring is not a comprehensive deterrent and usually does not identify the probable cause of poor performance or accidents. They contend that an employer cannot ignore the cause of impairment on the job.

  IV. Benefits and Drawbacks of a DFWP

  In formulating all business strategies, there is a need to evaluate the cost and benefit of any new initiative. With respect to a DFWP, particularly one that includes testing, the costs and benefits may vary widely, depending on the nature of the work and the characteristics of the workforce. Each employer needs to evaluate the issues in terms of its own unique business situation and determine how such a program would best fit within the company philosophy. Table 3-1 lists a number of factors which may be considered among the possible benefits and drawbacks of instituting a DFWP.

  As with any analysis of this type, the employer may want to quantify the costs and benefits to the extent possible. It is not generally difficult to estimate the costs. The laboratory fees and other costs of any testing are easily measured, and the cost of the management time needed to set up and administer the program can be estimated without great difficulty.

  Table 3-1. Benefits and Drawbacks of a DFWP

  The Benefits

  Ridding the workplace of substance abuse can improve morale, increase productivity and create a competitive advantage.

  A comprehensive program may qualify an employer for discounts on workers' compensation and other insurance premiums.

  The prevention of a single accident or injury may pay for the entire program costs for several years.

  Some contractors may need to have a DFWP to be eligible for business.

  Many employers have successfully formulated policies which deal with ethical and privacy issues, and have successfully controlled their responsibility for, and the costs associated with, treatment and rehabilitation benefits.

  Unions have initiated DFWPs with employers to promote good public relations and recapture work for their members.

  Having a DFWP sends a very clear message to employees, their families and the community as to the company's position on illegal drug use.

  The Drawbacks

  A DFWP can increase distrust between management and workers, and degrade morale and productivity in some work-places.

  A comprehensive DFWP could add significantly to the cost of doing business.

  False accusations, misidentification of employees as drug users, unjustified dismissals and violation of confiden-tiality obligations could prompt bur-densome litigation.

  Identifying substance users may entail an obligation to provide costly counseling and treatment for a relaps-ing condition. It is not always easy to contain the financial drain, and health insurance premiums could rise.

  A DFWP, particularly one that features drug testing, can raise serious ethical and privacy issues.

  Where the workplace is organized, the employer faces additional negotia-tions with the union.

  An estimate of the benefits of such a program may call for a somewhat broader inquiry. While productivity may increase, or accident rates decrease, if the number of drug abusers in the workforce is reduced, how does one estimate the magnitude of these changes?

  The starting point of this inquiry may be to estimate the number of drug abusers in the work force currently. While this certainly varies with the composition of the workforce, data con- cerning the percentage of all Americans who use illegal substances may be helpful. The federal government collects and publishes such data. It also publishes the percentage of all federal workers who test positive for drugs. It could also be helpful to see data on the percentage of those who use illegal drugs who experience performance problems at work. Data is also available on the impact of drug programs on accident rates in other companies.

  These data will not provide you with exact answers. They are not entirely consistent, and experts often disagree about their interpretation. They will, however, provide you with useful information for your own analysis.

  Whether to initiate a DFWP and what components to include will depend on a careful evaluation and balancing of these related issues. There is no single "model" program which will fit all companies. What is viewed as a benefit for one company may well be a liability for another. The basic message we would like to convey is that each employer should carefully evaluate the issues in the context of his or her business and decide which program elements fit best in those unique circumstances.

  Chapter 4

  Designing and Operating

  a Biochemical Testing Program

  I. Structuring a Testing Program

  In structuring a drug testing program, employers should ask themselves a number of questions to clarify their objectives and determine the appropriate procedures in light of those objectives. The answers to these questions will determine to a great extent what technical options are available and the associated litigation risk. Table 4-1 lists the technical terminology used in this chapter in discussing the issues involved.

  A. What is The Employer's Purpose in Testing?

  Pre-employment testing detects drug users in the application process. Generally unregulated by law, pre-employment testing permits the greatest degree of flexibility in terms of specimen to be used, drugs to be tested for and methods of analysis.

  Post-employment testing detects policy violations in current employees. The specimen to be used, the drugs to be detected and the methods of analysis are all a matter of choice for the unregulated employer. (As discussed below, employers subject to federal testing requirements have no such options as regards the specified substances.) Once the decisions are made, however, all parameters should be documented in a standard operating procedure to reduce litigation risk.

  B. What Procedures Should Be Followed?

  1. Government-Mandated Testing

  If the employer is initiating the program in response to government regulation, the parameters are most likely specified in the regulation. Federally regulated testing procedures are commonly referred to as the "NIDA Guidelines." These "Mandatory Guidelines of Federal Workplace Drug Testing Programs," published in the Federal Register (September 6, 1994, pp. 29908-29931), as amended, detail all aspects of the required program. The Departments of Transportation and Energy, as well as the Nuclear Regulatory Commission, have published guidelines for those regulated industries.

  Table 4-1. The Terminology of Testing

  Confirmatory Test

  The process of using a second analytical procedure to identify the presence of a specific drug or metabolite which is independent of the initial test and which uses a different technique and chemical principle from that of the initial test in order to ensure reliability and accuracy.

  Cross-reactivity

  The degree to which an antibody interacts with antigens other than the one used to produce the antibody. This is a property of nearly all naturally derived antibodies.

  Cutoff/Decision Levels

  The defined concentration of analyte (i.e. substance to be tested) in a specimen above which the test is called positive and below which it is called negative. This concentration is usually significantly greater than the sensi- tivity of the assay.

  Drug Screen

  The initial test, or screening test, used to identify those specimens which are negative for the presence of drugs or their metabolites. These specimens need no further examination and need not undergo a more costly confirmation test.

  False Negative

  A test result which states that no drug is present when, in fact, the drug or metabolite is present in an amount greater than the threshold or cut-off value.

  False Positive

  A test result which states that a drug or metabolite is present when, in fact, the drug or metabolite is not present or is in an amount less than the threshold or cut-off value.

  Gas Chromatography/

  Mass Spectrometry (GC/MS)

  An instrumental technique which couples the powerful separation potential of GC with the specific characterization ability of MS.

  Immunoassay

  The measurement of an antigen-antibody interaction utilizing such procedures as immunofluorescence, radioimmunoassay, enzyme immunoassay, or other nonradioisotopic techniques. In drug testing, the antigen is a drug or metabolite and its corresponding labeled analog; the antibody is a protein grown in an animal and directed toward a specific drug, metabolite or group of similar compounds.

  Nanogram

  One-billionth of a gram.

  ¨ Drugs targeted: Drugs to be tested are generally specified in company policy. Federally mandated testing programs generally require testing for five classes of drugs: marijuana, cocaine, amphetamines, opiates, and phencyclidine (PCP). However, there are ex-ceptions-for example, the Nuclear Regulatory Commission permits nuclear licensees to additionally test for barbiturates and benzodiazepines (Valium), the Department of Transportation regulations for regulated industries (airlines, railroads, mass transit, trucking, etc.) require alcohol testing in addition to the five drug classes. Federal agency programs are authorized to test for these five classes of drug but are only "required" to test for marijuana and cocaine.

  ¨ Specimen to use: Urine is the authorized specimen except for alcohol testing where breath or saliva may be used.

  ¨ Cutoff / Decision Levels: This is specified for each class of drug.

  ¨ Technology: A two step procedure is required:

  1. A screening test, using an FDA approved immunoassay.

  2. A confirmation test, using the Gas Chromatography/Mass Spectrometry (GC/MS) method.

  ¨ Laboratories: Federal regulations specify that only laboratories certified by the U.S. Department of Health and Human Services (HHS) may be used to test specimens for federally mandated testing. A listing of certified labs is published on or about the first of each month in the Federal Register.

  ¨ Medical Review Officer (MRO): Federal regulations require that specimens testing positive on both assays undergo a "medical review" by a licensed physician. The medical review officer's job is to:

  serve as an "ombudsman" between the employer, employee and the lab,

  determine whether the positive test may have resulted from legitimate medical drug use, and/or

  review laboratory procedures so as to rule out the possibility of error.

  2. Non-Mandated Testing

  Employers are required by government regulations to take certain actions when employees test positive for drugs targeted. If the employer is testing on its own authority or initiative, a variety of options are available. The following paragraphs discuss the options and the advantages and disadvantages of each.

  a. For Which Drugs Will the Employer Test?

  Most companies limit their testing program to the illegal drugs. Marijuana is the most prevalent illegal drug in America today, followed by cocaine. Then come opiates (e.g., heroin and morphine), amphetamines and, in some areas of the country, PCP. Federally regulated programs limit testing to these five substances. Some companies in the transportation industry, notably airlines and trucking firms, also include prescription medications, such as benzodiazepines and barbiturates as a non- federally mandated testing component of their DFWP.

  Laboratory sales representatives will commonly offer three-, five-, seven-, and 10-drug "panels" (lists). Some will try to convince the employer (and the employer's legal advisor) to test for all 10 drugs. Decisions as to the number and type of drugs to test for should be made carefully. The more drugs the employer tests for, the more it costs and the more difficulties the employer can encounter in terms of legal challenges, privacy and confidentiality issues, and rehabilitation expense. Testing for legally prescribed medications may be justified in the transportation industry, but separating out legal, prescribed use from illegal use can become burdensome. In general, it makes sense to test for marijuana, cocaine and whichever additional drugs may be causing a problem in the employer's workforce.

  b. What Will the Employer Do With the Test Results?

  Positive test results may be used to:

  ¨ Deny employment to applicants. It is generally good practice to tell the applicant he/she is not being hired due to current drug use and offer the opportunity to reapply drug-free after a certain period (e.g., 90 to 120 days).

  ¨ Take adverse action against employees. Virtually any action the employer takes on the basis of a positive test result will be considered "adverse." Therefore, the employer's collection process, chain-of-custody and analytical procedures should be well- established. (See "III. Using Test Results to Justify a Personnel Decision" in this chapter below.)

  ¨ Require counseling or treatment. Often mandatory counseling with follow-up testing forms the basis of a last chance agreement. See Chapter 5, "I.D. Last Chance Agreements."

  c. What Collection Procedures and Analytical Technology Best Suit the Needs of the Company?

  (1) Choice of Laboratories and Processes

  The most prudent course is to emulate the federal approach, by choosing immunoassay screening and GC/MS confirmation at an HHS-certified laboratory. Because of the extensive proficiency testing, quality control, and semi-annual inspection processes, certified laboratories are widely recognized as the "gold" standard for legal purposes. A listing of certified labs is published on or about the first of each month in the Federal Register. The College of American Pathologists and some states also operate urine testing certification programs.

  (2) On-Site Testing

  New technology has made available immunoassay kits that can be used on-site. Results are known within minutes, compared to the 24 to 48 hours required to secure results from laboratories. However, some experts have asserted that testing outside the laboratory, and without quality control procedures, is more vulnerable to challenge in litigation. On-site testing may be generally somewhat more expensive than laboratory testing, and while some on-site kits are excellent, accuracy and reliability vary according to the manufacturer. Using devices approved by the U.S. Food and Drug Administration provides some assurance of quality. On-site testing represents only Step 1 of the recommended two-step procedure, however; that recommended procedure consists of screening plus confirmation. A reasonable approach for some employers may be to screen out the negatives with on-site kits, sending positives to a certified laboratory for Step 2-confirmation by GC/MS.

  (3) Selection of Specimens

  A variety of body fluids can be assayed to determine drug use, as discussed below:

  ¨ Urine. Urinalysis methods and procedures for drugs of abuse are well established and represent the standard for most employee drug testing. The federal laboratory certification program is based on urine testing. Generally, collection procedures are equivalent to those used in a physician's office-with additional safeguards to deter specimen substitution or adulteration. (For example, the temperature of a specimen is measured). In some workplaces, specimen collection is observed, to insure that no substitution or adulteration occurs. Direct observation significantly increases, however, the invasiveness of the procedure, in terms of the various legal concepts of privacy protection, and hence the risk of litigation.

  ¨ Blood. Blood is an excellent specimen for determination of recent drug use. But the collection procedure is quite invasive in terms of privacy rights and in most states requires the use of a licensed technician. Blood sampling is required in some post-accident situations (e.g., by the Federal Railroad Administration) but is not widely used in workplace testing.

  ¨ Saliva. Inexpensive devices to assay alcohol in saliva are readily available, and some have been approved for use in the Department of Transportation alcohol testing programs. At this juncture methods and procedures for assaying other drugs in saliva are still in the research stage and are not currently used in workplace testing.

  ¨ Breath. Breath testing for alcohol is a standard practice, and devices are widely available. The National Highway Traffic Safety Administration routinely publishes lists of "evidentiary" devices that are approved for use in court. There are no breath testing devices available for drugs other than alcohol.

  ¨ Hair. The analysis of hair is a relatively new technology; there is considerable disagreement about its accuracy and reliability. On the favorable side, the collection process can be viewed as less invasive of privacy than the collection of other specimens. But the forensic acceptability of hair testing is affected by the following factors:

  Drug concentrations found in hair are extremely low, compared to levels found in urine, making analysis less reliable.

  There is a potential for false positives due to external contamination of hair with drugs from the environment. Once drugs are in the hair, no procedure will distinguish ingested drugs from external contaminants.

  Research indicates an enormous individual variability in drug retention in hair, even when subjects ingest the same dose.

  There is a potential for bias, owing to differences in drug incorporation rates that are related to ethnic characteristics. African-Americans, Latinos and Native Americans appear to retain a greater concentration of drugs than whites.

  There are no programs at the moment to certify laboratories in hair testing for drugs of abuse.

  C. How Much Is the Employer Willing to Pay?

  Like most things in life, you get what you pay for when it comes to employee drug testing. The business of drug testing has expanded exponentially: HHS-certified laboratories are currently processing approximately 60,000 specimens each day. A variety of entrepreneurs have entered the market, offering a package of drug testing services, including collection, analysis and medical review. If the price being quoted seems too good to be true, there is probably a reason.

  Cost generally depends on volume, but business coalitions (e.g., local chambers of commerce) can negotiate discounts for their members. The employer can reduce costs by performing some of the procedures in-house. If the employer has its own clinic, for example, specimen collection can be done by a staff nurse or technician. A staff physician could perform the medical review. If an employer not subject to government regulation plans to conduct high-volume, pre-employment testing, it may wish to explore an on-site procedure. The employer should be advised to use well-trained, qualified personnel and institute quality controls. Clerical staff should not be assigned to perform drug assays, nor should supervisors test their subordinates.

  As with all business decisions, quality and comprehensiveness must be balanced against cost. Due to the litigious nature of workplace testing, caution is advised when considering the lowest bidder. If the employer chooses to initiate a testing program, it should be done properly or not at all.

  D. How is Success Measured?

  As part of the overall structure of the testing program, it is highly recommended that employers build in an evaluation component. A decline in OSHA reportable accidents, injuries, absenteeism, theft and health benefit utilization are among the objective parameters that could be monitored to ascertain the success of the program. An annual evaluation of such data and an employee/supervisor survey could facilitate the fine tuning of a DFWP in general and a drug testing component in particular, and could maximize efficiency and effectiveness as well.

  II. Structuring a Drug-Testing Component of a DFWP - An Example: Employer X

  This section describes a comprehensive drug testing component of a DFWP operated by a large employer ("Employer X") that is subject to federal regulation. All employers who opt for drug testing would not necessarily choose the same approach. This approach is not any assurance against challenges and this example is included only to illustrate how testing may be organized.

  A. Occasions for Testing

  1. Upon Application for Employment

  a. ADA Implications

  Employer X must comply with the Americans With Disabilities Act (ADA), which forbids medical examinations or inquiries when an employer considers job applicants. Requiring an applicant who tests positive to give an explanation to the DFWP's Medical Review Officer (MRO) would not, however, constitute an impermissible medical inquiry under the ADA, as discussed in Chapter 2, "IV. F. Complying with Privacy/Confidentiality Requirements for Medical Records."

  b. Scope of Applicant Testing

  Testing after the conditional offer of employment is not limited by Employer X to those applying for sensitive positions involving safety, security or health. The reason is that even applicants seeking non-sensitive positions subsequently may be assigned to sensitive jobs. More importantly, the employer believes the knowledge that all applicants with a conditional offer of employment are tested strengthens the deterrent effect of the program, lessening the likelihood that any persons seeking employment will be drug users.

  2. Employee Probationary Period

  There may be job applicants who, knowing they will be tested in conjunction with the pre-employment process, temporarily refrain from drug use to pass the test but resume drug use after hire but during the probationary period. Employer X uses a number of drug testing methods during the probationary period to weed out those new hires who are unable to remain drug free subsequent to gaining employment. The testing options are:

  ¨ Random testing.

  ¨ Testing at pre-determined intervals.

  Monthly

  Quarterly

  Other

  3. After Probation

  a. Employees in Safety, Health or Security Sensitive Positions

  To withstand challenges to its determinations, Employer X carefully and precisely defines jobs considered safety-, health- or security-sensitive and ensures that the designations are reasonable. Employees assigned to these positions are so notified and are advised of the type of drug testing to which they are subject-random, annual or other.

  b. Testing For Cause

  Employer X considers requiring drug testing for cause when the employee appears to be impaired on the job. Supervisors bear the primary responsibility for invoking such testing and must be able to identify reasonable suspicion for a test. To ensure reliability, Employer X thoroughly trains supervisors to recognize the symptoms of possible substance abuse as they relate to an employee's work performance.

  c. Fitness for Duty

  Employees are subject to drug testing by Employer X in connection with physical examinations that are mandated by company policy, law or regulations. The examinations may be conducted on an annual basis or at other intervals. Employees are also tested prior to their return to work from specific types of absences, such as extended leaves for illness or non-illness related reasons, as well as recall from layoff. The length of absence that triggers testing is set forth in Employer X's policy. (The absence should be of sufficient duration to withstand claims that the period is unreasonable or arbitrary.)

  d. Rehabilitation and After-Care Monitoring

  Employees participating in a rehabilitation program and a subsequent after-care program are monitored by Employer X through periodic random testing to ensure compliance with the process. Employees who successfully complete treatment may be subject to random drug testing for a period of several years or more.

  e. Post-Accident

  In addition, under some of Employer X's programs not governed by DOT regulations, employees also will be tested when involved in accidents similar to those triggering DOT testing requirements discussed below.

  f. Other Workplace Incidents

  Whereas drug testing for cause results from an immediate instance of suspected impairment, drug testing based on "other workplace incidents" is grounded upon a pattern of behavior deviating from the norm. The employee may evidence actions or reactions in dealing with co-workers or supervisors that are out of character, compared to the employee's normal behavior. A common indication is the development of a pattern of excessive tardiness or absenteeism, particularly before or after weekends and/or holidays. A significant decline in productivity or work performance over a period of time is another warning sign. Employer X also may require testing when there are reliable reports of workplace incidents from co-workers. Employer X does not, under any circumstances, order testing as a result of anonymous tips or unsubstantiated co-worker statements.

  g. Random, Unannounced Testing

  Random, unannounced drug testing of any employees is used by Employer X to deter and detect substance abuse on and off the job. Since random testing puts the employee constantly at risk of being detected, he or she has no "safe" period in which to use drugs. Employer X's policy prohibits the presence of any detectable amount of any illegal drug in an employee who is performing company business.

  h. Testing Mandated by the Departments of Defense or Transportation

  Employer X is subject to and complies with both Department of Transportation (DOT) and Department of Defense (DOD) regulations in various parts of its business activities.

  (1) DOT Regulations

  As discussed in Chapter 2 under "I.A. Federal Requirements for the Transportation Industry," DOT regulations require that transportation workers in safety sensitive jobs be subject to five types of drug testing: pre-employment, random, reasonable cause, periodic, and post-accident.

  (2) DOD Regulations

  Like other contractors Employee X is subject to DOD regulations discussed in Chapter 2 under "I.B. Federal Requirements for Other Industries."

  i. Testing Mandated by Other Federal or State Agencies

  Employers such as Employer X who have contracts with federal agencies other than DOD and DOT, or with state agencies, may be required by regulation to certify they will provide a drug- free workplace as well as conduct drug testing under certain conditions. Employer non-compliance can result in suspension or termination of the contract.

  B. Peer Support Committee

  As part of its DFWPs, Employer X maintains a Peer Support Committee, covering bargaining unit employees. The committee is comprised of two employees from the facility medical department proposed by the employer and two "recovering" employees proposed by the union, all subject to mutual agreement of the parties. The committee functions as an alternative to the employer's EAP process. Bargaining unit employees who voluntarily accept or request committee assistance are provided personal support and counseling in dealing with problems related to substance abuse. In this connection, the committee also provides input to the employer's medical director with regard to the selection of appropriate rehabilitation programs. All actions of the committee are confidential and based upon unanimous agreement.

  III. Using Test Results to Justify a Personnel Decision

  Once the testing program and schedule have been put in place, the next step is to ensure that the program yields results on which personnel decisions can be reliably based. The validity of such evidence is particularly crucial when action is being taken on the basis of a single test result. According to a study of arbitration outcomes, drug test results do not necessarily improve management's chances of prevailing. In fact, they "may give management a false sense of security about its ability to prove misconduct" and "complicate management's obligation to establish just cause" when there is a collective bargaining agreement with a grievance arbitration system. "Drug Testing at a Labor Arbitration," Dispute Resolution Journal, January 1995. Here is a sample of the evidentiary issues that may arise when drug test results are introduced at an arbitration hearing. Similar issues may arise, in the absence of a collective bargaining agreement, in a lawsuit over a personnel action under the legal theories discussed in Chapter 2, depending on the cause of action asserted.

  A. Establishing the Chain of Custody

  The employer will generally have to demonstrate an unbroken chain of custody of the sample. The following questions are likely to be asked in any challenge.:

  ¨ How secure was the chain of custody? According to the "Mandatory Guidelines on Federal Workplace Testing Programs," discussed under "I.B.1. Government-Mandated Testing" in this chapter above, the chain of custody comprises procedures "to account for the integrity of each specimen by tracking its handling and storage from the point of specimen collection to final disposition of the specimen." It generally entails a written record, identifying every person who comes into contact with the specimen, and the date and time of each contact as it moves from the collection site to the laboratory and into storage. The employer may be asked to prove that the specimen was properly handled and secured during all stages of the test procedure.

  ¨ Did the sample emanate from the employee who has been disciplined? Sample collection typically includes a witnessed urine sample, verification by the employee, sealing of collection vial, signature of the collection site person and proof of secure shipping of the sample. Under some negotiated agreements, the employee and collection site person must remain with the sample until it is properly placed in the shipping container and dispatched to the laboratory. Samples may not be accepted for analysis if there are obvious irregularities in the collection procedures or the handling.

  ¨ Was care taken to prevent tampering, adulteration, substitution or the use of masking agents? The U.S. Supreme Court has acknowledged that directly observing sample collection trespasses upon strongly held cultural values. It noted that the procedures for collection "require employees to perform an excretory function traditionally shielded by great privacy" Skinner v. Railway Labor Executives Association, 489 U.S. 602, 606, 4 IER Cases (BNA) 224, 225, (1989). For that reason, employers often go to great lengths to thwart the possibility of subterfuge but without resorting to direct observation. The collection site person may maintain auditory surveillance, rather than actually observing, and listen for suspicious sounds. The temperature of the specimen also may be measured. An extremely low incidence of positives in a testing program may indicate a relatively drug-free workforce-or widespread cheating.

  B. Proving Accuracy and Reliability

  Additional questions that the employer is likely to be faced with in any challenge in this regard include those noted below.

  ¨ How demonstrable is the accuracy, reliability and diligence of the laboratory? The qualifications of the technicians and supervisors become relevant, as do the scientific appropriateness and thoroughness of the procedures. Employers have sometimes been required to make an affirmative showing that the laboratory is competent. HHS certification may be an important part of that showing.

  ¨ Was there adequate handling of the sample within the laboratory, as recorded in the documentation. Large-scale testing programs must keep track of myriad samples, creating