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Drug abuse testing in the workplace: avoiding pitfalls and problems.

Drug abuse testing in the workplace: Avoiding pitfalls and problems

Drug abuse in the workplace is a major problem. It affects 5 to 13 per cent of the American work force and cost employers as much as $33 billion annually.

Because observed behavior is an unreliable indicator, objective laboratory results are needed to help prove employee drug use. An estimated 5 million drug tests are performed annually in the workplace, at a cost of $60 million. Spending on such testing is expected to grow to $200 million a year by the early 1990s.

Urine screening programs are used to detect cocaine, marijuana, opiates, PCP, amphetamines, and barbiturates. Alcohol is more usually detected in serum and blood. Common drug assay methods currently include thin-layer chromatography, immunoassay, and gas chromatography/mass spectrometry. TLC, a method of separating and visualizing drugs and their metabolites, is used mostly to detect cannabinoids. The immunoassay methods--EMIT, ELISA, and RIA--are used as screens, while GC/MS is used as a confirmatory test.

In identifying drug abusers, positive results often lead to some form of sanction--so it's not surprising that laboratories may be drawn into litigation. This litigation typically asks the lab to show that correct test procedures were followed, a proper chain of custody was maintained, and the test results were reliable.

The main challenge in court cases centers on how the laboratory's customer, the employer, used the test results. The intensity of the litigation often depends on this issue. Employees and courts demonstrate less resistance to drug testing when abusers are referred for treatment and rehabilitation than when they are dismissed.

The laboratory itself faces exposure to liability in three principal ways: through improperly performed tests, leading to incorrect results that damage an employee; through a breach of confidentiality; and by misleading the employer about the meaning of the results.

Employers institute urine testing to detect early drug use by employees and to screen job candidates. The tests make it difficult for users to deny taking drugs, and positive results provide strong evidence in the disciplinary procees or in hiring decisions. Drug testing also enables employes to pinpoint the cause of such problems as absenteeism and decreased productivity. In some situations, such as in the military and among prisoners and parolees, random testing is credited with significantly deterring drug use.

Employee groups and unions oppose drug testing programs for various reasons. A number of legal problems can surface, ranging from union contract issues to disputes involving state or Federal laws and regulations, to state or Federal constitutional law (especially when testing public employees). The legal implications vary drastically from one jurisdiction to another, depending on such factors as the presence or absence of a labor agreement, the employer's response to a positive test result, and the company disciplinary process.

Of course, a failure to observe someone's Federal constitutional rights is a serious violation of the law. But constitutional issues with respect to urine drug testing outside the public sector--i.e., by nongovernmental employers--are relatively insignificant. By being aware of the issues, however, laboratorians may become more confident about their role and may also help customers think the issues through.

One common criticism--generally incorrect--is that companies testing employees for drug use are violating their constitutional right to privacy. The Fourth Amendment to the U.S. Constitution prohibits unreasonable search and seizure by government. It does not generally apply to private conduct. So the professional athlete's complaint that a league's urine testing program violates his constitutional rights shows basic misunderstanding of constitutional law.

In the private sector, urine tests for substance abuse can be required as part of preemployment and regular employee health examinations. Employees cannot claim constitutional protection against search and seizure unless the testing is carried out pursuant to a government regulation (by a company working as a government contractor, for example).

Testing programs for public employees are a different matter. Aside from mandatory preemployment tests or periodic physicals, a level of cause or reasonable suspicion is needed before most public employees can be required to submit a urine specimen. Within the past two years, Federal and state courts in 13 cases have ruled against random testing of public employees without "reasonalbe suspicion" or "probable cause" that the employees have used drugs.

There is a suggestion in several court decisions that an exception to the "for cause" testing rule may exist in jobs involving public or co-worker safety, where random testing may be permissible. But, more than one court has struck down a random urine drug test requirement for correctional officers in state prisons, which suggests that the "public safety" exception to the cause requirement may be narrowly defined. The exception may apply to such jobs as air traffic control or police work.

Periodic testing without cause probably can be required of public employees identified as drug users, when the testing is part of a disciplinary procedure or a treatment program. It also can be required of offenders in the criminal justice system; their rights are abridged as a result of their legal status.

Some state constitutions have a more developed right of privacy than others. The California state constitution specifically guarantees a person's right to privacy, a provision that has been interpreted to apply to private as well as government activities.

There's another privacy issue to keep in mind: Excessive disclosue of private information can be the basis for a lawsuit. Any testing program should insure that test results remain confidential.

Courts have held that blood and breath tests do not violate Fifth Amendment protection against self-incrimination. Urine testing should fit into the same category.

Due process has to do with fundamental fairness: whether a public employee's rights are sufficiently protected and whether the testing procedure or the results are arbitrary. Employers help promote due process by giving employees sufficient notice of a testing program and providing information about disciplinary hearing requirements. Allegations of arbitrary testing or results can be countered by testimony as to the accuracy of the test procedure and a factual demonstration that this protocol was followed.

Even in the private sector, due process may become an issue. For example, many labor agreements specify that changes in work conditions must be negotiated, and certain procedural steps must be followed before any changes are implemented. That's the case in the National Football League, where players and owners are now negotiating mandatory testing.

In making arrangements with a company to provide testing, a laboratory must know how the test results will be used. Litigation is less likely to arise over testing performed as part of an employee assistance program. But if the results will be used in a disciplinary procedure, the lab has to be prepared for challenges by maintaining a tight chain of specimen custody and by performing confirmatory testing. It also must be willing to lose employee time if court testimony becomes necessary.

A sound and carefully thoughtout company policy regarding substance abuse is the foundation for a successful drug program. A lab approached by a company proposing a urine testing program can perform a valuable service by reminding the company of this fact and by urging the company to have its proposed policy reviewed by counsel. With or without a labor agreement, the courts may restrict actions against employees to those measures specified in company policy. In doing so, the courts often treat this policy as in implied contract between the employer and employee.

It is important that company policy clearly advise employees of the circumstances under which they will be required to submit a urine specimen, the consequences of refusing to do so, and the ramifications of a positive test result. Disciplinary actions may be overturned if employees can show they were not fully informed of policies and procedures, or if the employer cannot demonstrate that they were?

Urine testing that may be required as part of a preemployment screening program or routine physical examination should be applied on a nondiscriminatory basis, covering all applicants and employees or all in a particular job category. Selective testing may trigger complaints of unlawful discrimination.

A one-time mass screening, to determine the extent of drug use within a company, won aproval in an arbitration case,.sup.8 although this may be an exceptional result. The arbitrator felt there was probable cause for blanket testing because an employee had recently been terminated for drug use.

The screening led to dismissal of a few more employees. Interestingly, these employees wre reinstated because they had been fired under a policy prohibiting the staff from working under the influence of drugs or alcohol. The arbitrator recognized that the positive urine tests only showed recent drug use. Had the policy probhibited the use of controlled substances, and not mentioned their on-the-job effectsM the firings probably would have been unpheld. This reversal highlights the need to understand what a positive urine drug result does and does not show and the importance of a properly written drug abuse policy.

As I have indicated, courts with few exceptions disallow random testing in the public sector, even if all employees are potential subjects. Furthermore, random testing is not allowed under the typical union contract unless it was a speicfic bargaining point.

When a job involves public safety, however, a random testing requirement may be acceptable. The reasoning is that the safety of lives and property should not depend on an employer's ability to detect the often subtle effects of drugs or alcohol without the aid of testing. The benefit of the doubt should go to safety, not to the employee. Random testing probably cannot be implemented unilaterally in either the public or private sector if it is not allowed under a union contract. This ban holds true even when public safety is clearly involved.

In jobs that do not involve safety issues, a "for cause" testing policy is preferable to random screening. Under such a policy, an employer may request a urine speciment upon reasonable suspicion (based on facts and reasonable inferrences in light of work experience) thaat the employee uses drugs. Staff members trained to recognize the signs of drug or alcohol abuse are better able to determine reasonable suspicion, and their judgment is more likely to withstand scrutiny from a court or arbitrator than the judgment of employees without such traning.

The suspicion may be based on indications that an employee is under the influence of drugs. Signs may include slurred speech, on-the-job accidents, frequent absences or tardiness, and early departures from work. Since reasonable suspicion is established by combining fact and judgment, it is not possible to predict or describe every possible situation.

The laboratory's role in drug screening programs widens when the test results are to be used in adversary proceedings. There is little argument against the admissibility of urine drug test results as evidence of drug use in labor arbitration hearings, administrative hearings, and court cases. The controversy in each case revolves around the weight that should be given to a positive result and whether proper test procedures have been carried out.

The principle used in receiving drug test results as evidence stems from a 1923 court decision, Frye v. U.S., 293 F. 1013 (D.C. Cir., 1923), which states that a test is admissible in court if it is generally accepted in the relevant scientific community. For common urine drug testing technologies such as the immunoassay screens, thin-layer chromatography, and gas chromatography/mass spectrometry, this should nt be difficult to prove, but it may require the testimony of an expert. The testimony should be provided by the person in the lab who best understands the test and can articulate what the literature has to say about the accuracy of the method. This may not neccessarily be the technologist who ran the test.

Regardless of the weight given a positive result, a case can quickly be lost if the employer and the laboratory cannot demonstrate a proper chain of custody--i.e., is the speciment offered in evidence the same specimen that was taken from the subject of the hearing? In general, the laboratory must show that the speciment could not reasonalby have been adulterated and that no one handled it who was not supposed to. This is done through a paper chain. Were the seals unbroken? Did each handler initial the package? Was the specimen kept in a secure place?

The laboratory must also show that the test was performed properly by a trained and qualified technologist. Failure to do so allows the subject of the test to argue that the results are tainted by procedural error and therefore unreliable. In some legal contexts, the technologist may have to testify in court; in others, a written statement may suffice.

The laboratory should alert the employer to a legal expense that can arise if a distant reference laboratory performs the confirmatory testing: The employer may have to foot the bill for for bringing in an expert from the reference lab. The matter of obtaining needed testimony from the reference laboratory may be overlooked by both the lab and customer in initial arrangements about testing. It should be addressed.

It is harder to demonstrate proper test performance when procedures are complex or rely on interpretive skills. For example, the results of a thin-layer chromatography test for marijuana show up as colored rings on paper, which have to be read before fading. An employee's attorney may not only attack a technologist's judgment on the test but also point out that there is no longer any "evidence" of the results. But as a rule, if the test is a generally accepted one, there will be no challenge to the theory, only to the way the procedure was carried out.

Do the results prove drug usage? Should a positive test be confirmed by an alternate test in either employee or preemployment scrrening? Most companies conducting urine drug testing recommend confirmation in both cases. (The CAP's proficiency survey program highly recommends that a positive result not be reported without confirmatory testing.) Some firms feel that a positive by immunoassay testing is sufficient for preemployment testing, but permit the applicant to request a confirmatory test at his or her expense. If the second test is negative, the company then reimburses the applicant.

Even though immunoassay methods can claim accuracy rates between 97 and 99 per cent, confirmation by a comparably sensitive alternative method virtually eliminates any doubt abaout accuracy. This avoids time-consuming and expensive attempts to prove that a positive immunoassay is reliable enough to stand alone as evidence of drug use. A confirmation policy adds a greater level of fairness and certainty to the testing process and allows the employer to minimize the legal issues concerning the validity of test results. The policy also enhances employee morale and confidence in the testing process.

In court proceedings or arbitration hearings, a lab witness may be asked to transalte professional jargon into lay or legal terms. For example, a reliability/confidence rate exceeding 90 per cent more than meets a legal burden of proof requiring "a preponderance of the evidence"; that burden is equal to 51 per cent. Reliability of a single test may even go beyond "reasonable doubt" standards. the point is that the lab expert should be sure the jargon of the lab is understood by the attorney and the customer and, one hopes, by the fact finder in any hearing where the expert may testify.

Technical and legal issues aside, the laboratory also should explain to customers that positive results do not prove present impairment. Tis is something employers don't always understand. Positive drug test results usually reflect of-the-job usage, and the employer has the burden of showing why off-the-job conduct warrants discipline or termination.

Urine screening is not a panacea for substance abuse problems in the workplace. When properly implemented, however, it can support a well-thought-out substance abuse program. Screening detects a problem that an employee may noat admit. Sure knowledge that an emplyee abuses drugs allows the employer to mov with confidence in deciding what to do about the problem.

When providing testing services for drug abuse screening programs, the laboratory must be as cognizant as the employer of the potential legal ramifications. Planning with the legalities in mind will produce a beneficial program for the employer and the employee.
COPYRIGHT 1987 Nelson Publishing
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1987 Gale, Cengage Learning. All rights reserved.

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Author:Collins, William C.
Publication:Medical Laboratory Observer
Date:Feb 1, 1987
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