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A dose of drug testing.

Drug testing is one of the most effective ways for retail employers to screen job applicants. In addition, drug testing protects retail companies from losses due to employee drug abuse and absenteeism. Properly administered drug-testing programs not only have proven to be cost-effective mechanisms for preemployment screening but also have been upheld by the courts.

Employers are increasingly using drug testing as part of a national drug-free workplace effort to help eliminate drug use. Drug testing helps retail stores maintain a competitive edge by keeping employees drug free.

Retail stores often have high employee turnover and are concerned about security and employee theft. Stores often have expensive merchandise that is tempting for drug abusers, many of whom steal to finance their habit. Drug testing decreases drug-related employee turnover and theft by helping to keep drug abusers out of the workplace.

On-site drug testing is particularly useful because test results are immediate and do not require laboratory instruments. In a preemployment situation, this immediacy can help company personnel determine whether they want to hire the person.

Why is preemployment drug testing so effective? To answer that question, this article first explores alternatives to drug testing and then discusses how the courts have viewed preemployment drug testing. This article focuses on the specific concerns of retail companies and how they can set up efficient, legally sound drug-testing programs.

Are there alternatives to drug testing for retail companies that need to investigate an applicant's background? Are these alternatives as accurate and fair, and are they less invasive to the applicant's privacy?

In a preemployment situation, background checks are not as effective as they once were. Employers are too concerned about liability in releasing information about past employees.

In addition, our society has become so transient that it is often hard to find people who can provide reliable information.(1) Polygraphs are not an alternative to drug testing. Because of problems with their accuracy, many states and the federal government have limited or banned their use.(2)

Would it be possible for an employer to train managers to detect drug use? Although such observations may be useful in establishing reasonable suspicion to request a drug test or in detecting the symptoms of alcohol intoxication, such as slurred speech and the odor of alcohol, credibility problems occur because of the variety of perceptions that are possible.(3)

Edward Imwinkelried, an expert in scientific evidence, has stated "there are literally hundreds of psychological studies demonstrating that lay eyewitness testimony is prone to a high degree of error. Urinalysis testing is demonstrably more reliable."(4)

Court have held that narcotic effects are not discernible by the average layperson, or even by a police officer, without some experience, training, or a paramedical degree.(5) Drugs, such as cocaine and marijuana, can have serious and immediate effects on judgment and motor ability of the user, but they often cannot be detected, even by a trained observer.(6)

What about tests that can be used to measure an applicant's performance? Such tests do exist, but they have several major problems and in most cases do not work in the retail environment.

The available tests are neurobehavioral or psychophysiological evaluation systems, and several questions have arisen regarding their use.(7) For example, have such tests been validated for impairment due to drug use? Even preliminary studies with marijuana, cocaine, and other drugs may not have been performed.(8)

Drug testing is an effective means of predicting future job performance. Both the US Postal Service and the US Navy have done studies on preemployment drug testing as a predictor of future job performance.

The postal service study began with preemployment drug testing of eligible job applicants.(9) The study showed that employees who tested positive for drugs in general were almost twice as likely to be absent from work as those who tested negative. Those who tested positive for cocaine were more than three times as likely to be absent compared to those who tested negative.(10)

Employees who tested positive for drugs in general were approximately one and a half time more likely to be let go by the employer than those who tested negative. Cocaine users were almost twice as likely to be let go as those who tested negative.(11)

Another study of positive drug tests and subsequent job performance was done on approximately 500 Navy recruits who tested positive for marijuana at the time of induction with a matched group of Navy recruits who tested negative at the time.

A greater percentage of the group that tested negative (81 percent) were still in the Navy after two and a half years. Of the group that tested positive, only 57 percent remained in the Navy after two and a half years.(12)

These studies are interesting to the retail industry, where employee attendance is essential because the amount of products sold depends on the availability of salespeople. The retail industry cannot afford to hire people who have a tendency to miss work.

The courts have almost universally upheld preemployment drug testing, since an applicant has the ability to walk away from the application process at no peril and is free from coercion.

In a recent federal case, the court noted that an applicant has a large measure of control over whether he or she will be subject to urine testing. No one is compelled to seek a job. If individuals view drug testing as an indignity, they need only refrain from applying.(13) An applicant who does not wish to consent to a drug test forgoes only one particular job opportunity.

By drug testing job applicants, the company is asserting its right to seek healthy and qualified employees. The courts have repeatedly recognized that employers are entitle to define conditions for employment.(14)

Being drug free is just one of those conditions of employment. The law does not usually provide exemptions from society's customary rites of passage, such as the preemployment physical. As one court noted, "Urinalyses are commonplace in these days of periodic physical examinations and do not constitute an unduly extensive imposition on an individual's personal privacy and bodily integrity."(15)

The US District Court for New Jersey has noted that preemployment drug testing fits right into the state's public policy "to rid all workplaces" of the influence of drugs.(16) Preemployment drug testing is supported even among some jurisdictions that have disapproved of other, more controversial types of drug testing.(17)

For a variety of reasons, the courts have held that such testing is acceptable, even in the government where employees have access to constitutional attacks against drug testing.(18)

For example, in Fowler v. New York City Department of Sanitation, the court in upholding drug testing noted that drug use causes poor job performance, including inefficiency, incompetence, mismanagement, high absenteeism, skill impairments, and a decrease in productivity.

The employer can also be held liable for injuries caused by drugs users while they are on the job. The court also recognized that the desire for a stable work force could be a reason to conduct drug testing.(19)

In private employment cases, the courts have also upheld preemployment drug testing. In Minneapolis Star Tribune, the National Labor Relations Board (NLRB) decided that drug testing job applicants is not a mandatory subject of collective bargaining.

The board reasoned that applicants are not employees within the meaning of the National Labor Relations Act. Applicants perform no services for the employer and receive no pay. Applicants are under no restrictions as to other employment or activities at that period of time. As the NLRB noted: "There is no economic relationship between the employer and an applicant, and the possibility that such a relationship may arise is speculative."(20)

In the case of Wilkinson v. Times Mirror, a private publishing company sought to implement a preemployment drug-testing program, which was contested on state constitutional privacy and unlawful business practice grounds. The court upheld preemployment testing, saying that job applicants should reasonably expect that they will have to undergo a preemployment medical examination.

In addition, applicants had notice of the testing, and the testing procedures were designed to minimize the intrusion into individual privacy. The court noted that samples were properly collected, and confidentiality was protected. In conclusion, the court noted that an employer has a legitimate interest in not hiring individuals whose drug abuse may render them unable to perform satisfactorily on the job.(21)

In Jevic v. Cola Cola Bottling Co., drug testing on a preemployment basis was upheld despite a variety of contractual, public policy, and privacy claims by the plaintiff. The court noted that the plaintiff "did not have to take the test. If he felt the test was intrusive, degrading, or in any way humiliating, his ever-present option was to walk away."(22)

THE LAW CLEARLY SUPPORTS PREEMPLOYMENT testing. As one federal court noted: "It is not unreasonable to set traps to keep foxes from entering henhouses even in the absence of evidence of prior vulpine intrusion or individualized suspicion that a particular fox has an appetite for chickens."(23)

A retail company considering a drug-testing program should consult state and local laws. A number of states, and some cities, have enacted various drug-testing laws. Some states have comprehensive statutes that have many common provisions. Most of them regulate preemployment testing. Some states may require drug tests be performed by laboratories.(24)

Drug test procedures must be easy to use. The strength or weakness in any retail preemployment drug-testing program manifest itself at the local hiring level. Managers must be given simple procedures to use and know what is expected of them.

The company policy on drug testing applicants must be simple and clearly defined. Managers should ensure that applicants are aware that drug testing is part of employment before scheduling an interview. Managers should know how to arrange a drug test and what to tell the applicant if the test is positive.

Some companies notify applicants of testing in advance, to send out a signal that the company is a drug-free workplace. This discourages drug users from applying for a position, thus saving time and money.

Here is an example of a policy on drug testing.

"The company shall notify the applicant in writing upon application and prior to the collection of the specimen for the drug test that the applicant may be tested for the presence of drugs or their metabolites.

"The applicant required to submit to a drug test will be requested by the company to sign a statement indicating that he/she has read and understands the company drug-testing policy. An applicant's refusal to sign such a statement shall not invalidate the results of any drug test or bar the company from refusing to hire the applicant."

The most vulnerable aspect of any drug test is the chain of custody of the specimen. Chain of custody is the documentation of the transportation and handling of the specimen from the time of collection until the specimen is analyzed in a laboratory.

Retail managers need to have simple chain-of-custody procedures. A test that does not require a laboratory will simplify procedures and provide quicker results to management.

An on-site test produces rapid, documentable results. An increasing number of retail establishments are using on-site drug testing because they see the advantages to the immediacy of the test results.

Many specimens tested and sent to a laboratory yield negative results. If a company sends specimens to a laboratory, they must all be accompanied by chain-of-custody forms and in specially sealed, tamperproof containers or reliable, tamper-evident collection devices or containers.

On-site drug tests act as an initial screen, which provides immediate and final results on negative specimens. Chain of custody is performed on all specimen collections. With on-site testing only positive test results - which usually constitute only a small percentage of the samples - must be sent to the laboratory for confirmation. Therefore, paperwork and staff time are substantially reduced.

On-site testing has other advantages, including flexibility as to where testing is conducted. In addition, it increases the deterrent effect because the time between results and consequences is decreased.(25) On-site testing is a valuable tool for retail stores because it can be performed at the employment site, in a nearby doctor's office, or at an occupational health clinic.

A good on-site drug test keeps a company out of court. It also meets rigorous scientific standards, such as demonstration of substantial equivalence to proven reference methods and premarket clearance from the Food and Drug Administration.(26)

The test should also, at a minimum, perform at the National Institute for Drug Abuse (NIDA) cut-off levels for drug detection.(27) The test should be documentable and easy-to-use and have undergone an independent, scientific clinical evaluation performed by a laboratory that is certified by NIDA or the equivalent.(28) A reasonable cost per test is also a factor to be considered.

The use of drug testing is on the rise because it is proving its value. Simple easy-to-use tests that provide an on-site capability expand an employer's ability to manage a healthy, productive, and profitable work force.


(1) William E. Hartsfield, Investigating Employee Conduct (Deerfield, IL: Callaghan and Co., 1988) and Edward J. Imwinkelried, "Some Preliminary Thoughts on the Wisdom of Governmental Prohibition or Regulation of Employee Urinalysis Testing, "Nova Law Review, Vol. 11 (1987), pp. 563,584. (2) See the Employee Polygraph Protection Act, P.L. No. 100-347, effective December 27, 1988; William E. Hartsfield, "Polygraphs," Investigating Employee Conduct (Deerfield, IL: Callaghan and Co., 1988), pp. 1-40; (3) Tia and Richard Denenberg, Alcohol and Drugs: Issues in the Workplace (Washington, DC: Bureau of National Affairs, 1983), pp. 64-67. (4) Imwinkelried, pp. 563,588. (5) State v. Tamburro, 3646 A.2d 401 (N.J. 1975); State v. Tiernan, 123 N.J. Super. 322 (Co. Ct. 1973); People v. Gurrola, 218 Cal. App.2d 349 (1963); People v. Stone, 318 P.2d 25 (Cal. App. 1957); State v. Montez, 345 P.2d 938 (Cal. App. 1959); People v. De LaTorre, 69 Cal. Rptr. 654 (App. 1968). (6) Transport Worker's Union v. Southeastern Pa. Transportation Auth., 678 F. Supp. 543, 550 (E.D. Pa. 1988), aff'd. 863 F.2d 1110 (3rd Cir. 1988), vacated and remanded, 109 S. Ct. 3209, 57 U.S.L.W. 3841 (June 26, 1989), aff'd 884 F.2d 709 (3rd Cir. 1988). (7) Sidney Cohen, MD, a hearing before the US Senate Committee on the Judiciary on the legal and constitutional issues surrounding an effective employee drug-testing program, April 9 and May 13, 1987, p. 197. (8) Cohen, p. 197. (9) Jacques Normand and Stephen Salyards, "An Empirical Evaluation of Preemployment Drug Testing in the United States Postal Service: Interim Report of Findings," Drugs in the Workplace: Research and Evaluation Data, NIDA Research Monograph 91, DHHS Pub. No. (ADM) 89-1612, 1989, p. 120. (10) Normand and Salyards, p. 128. (11) Normand and Salyards, pp. 130-131. (12) Steven W. Gust and Michael J. Walsh, "Research on the Prevalence, Impact, and Treatment of Drug Abuse in the Workplace," Drugs in the Workplace: Research and Evaluation Data, NIDA Research Monograph 91, DHHS Pub. No. (ADM) 89-1612, 1989, p. 8. (13) Willner v. Thornburgh, 928 F.2d 1185 (D.C. Cir. 1991), cert. denied, Willner v. Barr, 112 S.Cp 669 (1991); also see 738 F. Supp. 1 (D.D.C. 1990; Wyman v. James, 400 U.S. 309, 324 (1971). (14) N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45-46 (1937); also see Paramount Mining Corp. v. N.L.R.B., 631 F.2d 346, 348 (4th Cir. 1980), (same); Sioux Quality Packers v. N.L.R.B., 581 F.2d 153, 156 (8th Cir. 1978). (15) State v. Malik, 534 A.2d 27 (n.J. Sup. Ct. 1987). (16) Jevic v. Coca Cola Bottling co., 5 I.E.R. Cases 765, 771 (D.N.J. 1990). (17) Dozier v. City of New York, 130 A.D.2d 128, 519 N.Y.S.2d 135 (1987); also see McDonell v. Hunter, 612 F. Supp. 1122, 1130, n. 6 (S.D. Iowa) aff'd. as modified to allow further types of drug testing, 809 F.2d 1302 (8th Cir. 1987). Lovvorn v. City of Chattanooga, 647 F. Supp. 875, 881, n. 7. Also see Turner v. Fraternal Order of Police, 500 A.2d 1005, 1011 (D.C. App. 1985). (18) Burka v. New York City Transit Authority, 680 F. Supp. 590, 593 (D.C.N.Y. 1988); Alverado v. Washington Public Power Supply System, 759 P.2d 427, 436 (1988), cert. denied, 109 U.S. 1637 (1989); Poole v. Stephens, 688 F. Supp. 149, 152 (D.N.J. 1988); Oden v. Koehler, 524 N.Y.S.2d 614 (1988); Gray v. New York City Transit Auth., 128 App. Div.2d 528, 512 N.Y.S.2d 461 (1987). (19) Fowler v. New York City Department of Sanitation, 704 F. Supp. 1264 (S.D.N.Y. 1989). (20)Minneapolis Star Tribune and the Newspaper Guild of the Twin Cities, 295 N.L.R.B. No. 63, 58 U.S.L.W. 2025 (June 15, 1989). (21) Wilkinson v. Times Mirror, 215 Cal. App. 3d 1034, 264 Cal. Rptr. 194 (1989) cert. denied (March 15, 1990), 4 I.E.R. Cases 1579. (22) Jevic v. Coca Cola Bottling Co., 5 I.E.R. 765 (March 19, 1990). (23) N.T.E.U. v. Von Raab, 816 F.2d. 170, 179 (5th Cir. 1987). (24) States with comprehensive laws covering testing standards, confidentially, privacy and rehabilitation are discussed in David G. Evans Drug Testing Law, Technology and Practice (Deerfield, IL: Callaghan and Co., 1990), sections 4:01-4:18. (25) McOueen v. State, 740 P.2d 744 (OK App. 1987). (26) Frye v. U.S., 293 F 1013 (D.C. Cir. 1923). (27) NIDA Mandatory Guidelines for Federal Workplace Drug Testing Programs, 53 Fed. Reg. 11983. (28) As an example, see Derek P. Baker et al., Evaluation of Abuscreen ONTRAK Assays: Correlation Between Clinically Trained Personnel and Non-Clinical Personnel in the Field (Newbury Park, CA: Damon Reference Laboratories).

David G. Evans is an attorney in Lawrenceville, NJ. He consults nationally on drug testing and substance abuse issues for corporations, government, and laboratories. He is the author of Drug Testing Law, Technology, and Practice.
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Title Annotation:screening job applicants
Author:Evans, David G.
Publication:Security Management
Date:May 1, 1992
Previous Article:Taking a pulse on protection.
Next Article:The dilemma of detoxing the work force.

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