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Testing fair and square.

RUG ABUSE IS AN EMOTIONAL ISSUE. THE term conjures up images of illegal activity, pushers, needles in the arm, skid row, and death. With such images in mind, company executives find it difficult to accept that drug abuse exists in their companies. But those same executives are becoming increasingly aware of the costs involved with employing drug abusers. Current studies estimate that US companies lose between $50 billion and $100 billion annually because of drug abuse. That cost, when passed on to the consumer, becomes a hidden drug-dependency tax on US goods and services.

Many companies have chosen to make urinalysis a part of their efforts to eliminate drug abuse by employees. The 1989 "Survey of Employer Anti-drug Programs" by the US Department of Labor's Bureau of Labor Statistics estimates that 60 percent of all private nonagricultural establishments with 5,000 or more employees now have drug-testing programs.

US companies are required by federal and state labor laws to provide a safe working environment for employees. They are also legally obligated to protect public safety. The Drug-free Workplace Act of 1988 requires all private sector employers that have contracts of $25,000 or more with the federal government to take specific steps to maintain drug-free workplaces. The act is limited in scope and does not specifically require testing, but it clearly indicates the momentum toward drug-free workplaces.

As more companies begin testing, employers that do not test and therefore allow drug-abusing employees to remain with their companies may become increasingly vulnerable to lawsuits in the event of a drug-related accident. That possibility, combined with the documented economic effects of drug abuse, is causing many companies to consider implementing drug-testing programs.

The Department of Labor study indicated that an additional 10 percent of all establishments, ranging in size from I employee to over 5,000 employees, were considering implementing drug-testing programs during the 12 months following the study. That number may rise in response to a December 1989 Gallup survey showing that 60 percent of US workers favor on-the-job drug testing.

Many small companies believe they have little or no chance to work out a sensible answer to the drug-abuse problem because they lack internal resources. However, through creative use of all internal and external resources, even small companies can have successful programs.

Often, a company's first concern is the legality of drug-testing programs. The courts have generally upheld a business's right to test for drugs if the testing is done carefully and is based on a policy that is reasonable and fairly applied. Law governing testing for drugs of abuse is subject to frequent change and is currently developing at a rapid pace with variations from state to state. Therefore, employers should obtain legal counsel when developing a drug-testing program and whenever questions arise.

The Department of Health and Human Services (DHHS) has recommended that businesses consider the guidelines issued by DHHS and administered by the National Institute on Drug Abuse (NIDA) as the "gold standard" for evaluating drug-testing programs and laboratories. However, those guidelines were designed specifically for laboratories performing drug tests for the federal government and are not always easily adapted to an industrial testing program. Therefore, DHHS/NIDA requirements will be mentioned when appropriate, but this discussion will not be limited to information contained in the DHHS/NIDA guidelines.

Certain principles for designing a good program are generally accepted and have remained consistent over the years. To maintain the highest quality standards in drug-testing programs, companies should ensure that their programs include at least the following:

* comprehensive policies governing employee testing

* adequate notice to employees when a program is initiated

* education programs for supervisors and for all other employees

* sample-handling and documentation procedures to ensure each sample has not been tampered with and the sample and the reported result were correctly matched

* proven test methods with stringent quality control

* strict adherence to confidentiality of test results

* a program for counseling and rehabilitating drug-abusing employees (usually referred to as an employee assistance program or (EAP)

EXPERIENCE HAS SHOWN THAT A well-thought-out policy is the key to a successful drug-testing program. Sample policies are available from various sources, including NIDA, the Conference Board, and some manufacturers of drug tests, but such policies should be used only as models. A policy must be tailored to a company's unique situation.

A company should have a clear understanding of why it wants to start a testing program and what it expects to accomplish. Most companies view the drug abuser in industry as a security risk, a safety risk, a liability to productivity, or a person with a medical or personal problem. The view chosen, which evolves from the company's philosophy of employee relations, sets the direction for policy development and determines which department will have primary responsibility for implementing the program.

Because drug abuse can affect many departments, the company should review all existing company and departmental policies before formulating a drug policy. That policy must be consistent with other company policies and with union and other employee contracts.

The company should establish a policy development committee, drawing members from the departments most directly affected. Those might include the medical, human resources (personnel and benefits), safety, and security departments. A company with an employee counseling program should include a program representative on the committee.

In addition to members from those key departments, legal counsel should play an essential part throughout the policy development process. The union or the employees should also be represented, especially if the policy will be part of union or employee contract negotiations.

The company should appoint a committee coordinator, who will have primary responsibility for ensuring the policy is completed. Such a person researches, drafts, and rewrites the policy for the committee to review.

A small company that doesn't have the separate departments mentioned earlier can staff its committee with the persons whose internal and management functions are most similar to the departments mentioned. If some of those functions are contracted out, small companies might choose to include the contractor on the policy committee.

Some companies' policies take up only a single page, while other companies have chosen to go into great detail. At minimum, a drug-abuse policy should contain the following basic elements:

N a position statement that reflects the company's view of drug abuse and the drug abuser

a a statement of need, which usually either documents incidents that have already occurred in the company or expresses the company's desire to prevent such incidents

* a list of the company's responsibilities to its employees and which departments are charged with carrying out those responsibilities (for example, the medical department is responsible for administering testing; the security department is responsible for reporting all incidents of possession, sale, distribution, or use of illegal substances; and the personnel department is responsible for determining what actions should be taken for or against an employee)

n a list of the employees' responsibilities (for example, they are expected to arrive at work fit for duty and without performance-altering drugs or alcohol in their systems; they are expected to conduct themselves in a legal and lawful manner while on company property or on company business; and they are expected to cooperate with the department responsible for drug testing)

n a rundown on the procedures the company will implement to achieve the goals of the policy

n a statement of the penalty for violating the policy (that is, for testing positive for drugs or for refusing to submit a sample)

THE POLICY SHOULD SPECIFY WHO will be tested and when. In the Bureau of Labor Statistics study, about 85 percent of establishments with testing programs reported testing job applicants, while 64 percent reported testing current employees.

In deciding who will be tested, a company must avoid even the appearance of discrimination. If not all employees or applicants are tested, a solid, nondiscriminatory reason for selecting those who are must be stated in the policy.

Management definitely should not be exempted from testing-for both nondiscrimination and security reasons. Although drug use is more prevalent in blue-collar workers than in white-collar workers (a recent study by a Chicago-based company that provides drug-testing services showed 12.5 percent of blue-collar workers tested positive, while only 1.4 percent of white-collar workers tested positive), a lapse of judgment at the executive level may be far more serious than a similar lapse at the assembly-line level.

Testing is usually done at one or more of the following times: before employment; as part of an employee's regularly scheduled physical; whenever reasonable suspicion exists that the employee is under the influence of drugs; following an accident; randomly (an employer selects employees for testing on a neutral, systematic basis without giving advance notice of when testing will occur); or as part of a monitoring program for an employee who is undergoing rehabilitation for a drug-abuse problem.

Preemployment testing is often the simplest choice for companies because no union or employee bargaining is necessary; only current employees are governed by existing contracts or employee agreements. In addition, applicants rarely challenge testing. Unlike an employee who is tested and as a result of the test may be disciplined or discharged, a person who does not yet have a job has fewer legal grounds on which to base a claim.

Routine or periodic drug testing may be performed as part of an employer's fitness-for-duty policy. Although it might seem employees would simply abstain from drugs before a scheduled test, making such tests an unreliable indicator of drug use, addicts apparently aren't able to do so. For example, in preemployment testing 12 percent of all applicants test positive for drugs in spite of being forewarned that a drug test will be a part of their qualifying for employment.

Reasonable-suspicion testing (sometimes called for-cause testing) is indicated when an employee exhibits inappropriate behavior or performance problems on the job that might be caused by drug abuse. Common indicators of behavior or performance problems are excessive absenteeism or tardiness, fighting, sleeping on the job, significant erosion of work quality or quantity, and, of course, obvious signs of intoxication.

On-the-job accidents are also broadly classified as performance problems. The policy should clearly specify what constitutes a performance problem. With standard definitions, personal bias on the part of any given manager can be avoided. The key to reasonable-suspicion testing is that a documented performance problem must exist before testing. Urine drug testing is then used to determine whether drug use might be a contributing factor.

Random testing is the most controversial kind of drug testing. Such testing is normally reserved for employees in jobs where drug use would create an unreasonable threat to the health or safety of coworkers or the public. Companies considering the use of random testing should measure their decision against the company's need to ensure safety. Random testing has been the focus of much of the litigation arising out of employment drug testing.

THE PROCESS OF DEVELOPING A drugs-of-abuse urine testing policy is an excellent opportunity for educating and gaining support from members of the policy development committee.

Because the courts often use the company policy as an implied contract between employer and employee, companies must adhere strictly to the terms of the policy and employees must understand those terms. Making employees fully aware of the company's drug policy can help avoid legal disputes. If employees can show they were not fully informed of a drug-abuse policy, courts and arbitrators may overturn disciplinary actions.

The company policy must be publicized, and employees must be reminded of policy requirements when they are asked to produce a specimen. Employees must be fully aware that refusal to submit a urine sample is grounds for discipline. To further ensure due process, the company should get employees to give written consent both for the testing and for the release of test results to company management.

To communicate and implement the drug-abuse policy effectively, managers and supervisors should be trained in several matters: the rationale for having the policy; how the policy was developed; basic features of the policy; procedures for implementing the policy; basic drug-abuse terms and symptoms of drug use; and basic legal concerns.

BOTH SUPERVISORS AND EMPLOYEES must feel confident the program will not only detect the guilty but also protect the innocent. Even if a company chooses to contract out the entire testing program (vendors can be hired to administer all aspects of sample collection and testing), the company is still responsible for ensuring that the contractor conducts the program correctly. The following steps are necessary for a reliable system of drug testing:

Obtain valid specimens. Authentic, unadulterated specimens can usually be obtained without directly observing sample collection if some simple precautions are taken. To ensure the correct individual is tested, employees should provide photo identification at the testing site. To reduce the possibility of substituting or altering a specimen, employees should not be allowed to bring purses or briefcases or wear bulky clothing into the sample collection area. If the drug testing is done as part of a physical exam, the employee might be asked to provide the specimen while wearing an examination gown.

Restricting access to faucets and placing bluing agents in toilets makes it difficult to dilute samples. Additional safeguards include measuring the temperature of the specimen at the testing site and measuring the urine's specific gravity (the density of urine as compared to water) and level of creatinine (a compound produced in the body and excreted in urine) when the sample reaches the laboratory. The temperature of an adulterated or substituted sample is lower than the normal temperature range for freshly voided urine. An adulterated sample's specific gravity and levels of creatinine are also outside the expected ranges.

Maintain chain of custody. Starting at the time of collection, a sample's chain of custody must be documented and protected. "Chain of custody" is a legal term that refers to the ability to trace the sample from the time it was donated by the employee or applicant through analysis to reporting of the result.

Complete records should be maintained that include who received the sample, who handled it or had access to it, where it was stored, how it was tested, and the like. Such records should be kept secure both to prevent tampering with the data and to protect the privacy of the employee.

Drug test results should be handled with strict confidentiality. The employee must not feel there is any possibility of a breach of trust. Unless someone needs to know urinalysis results, he or she should not be told. Because of the stigma attached to positive test results, indiscriminate release of results may lead to lawsuits.

After donating a sample, the employee should hand the specimen container, preferably tamperproof, directly to the person supervising the collection. That person should then label and seal the container immediately. The collector and the donor should initial the container to indicate they both agree that the container holds the donor's urine specimen. The sample should be kept in a secure place such as a locked room or refrigerator until it is either tested or sent to a laboratory.

Choose accurate tests and dependable laboratories. The usual approach in drug testing is to screen a batch of specimens by one test method and then, for specimens that screen positive, to use a second test method of equal or greater sensitivity to reanalyze and confirm the results. DHHS/NIDA guidelines specify that the initial method must be an immunoassay (over 97 percent of NIDA-certified labs use Emit immunoassays, manufactured by Syva Company) and the confirmation method must be gas chromatography/mass spectrometry (GC/MS).

Those guidelines further specify that for federal employees, both screening and confirmation testing must take place in the same Nida-certified laboratory. However, in private industry, the initial screening may (depending on the laws) be done on-site or at a laboratory that provides screening only.

Because GC/MS requires relatively expensive and complicated equipment and highly skilled and trained technicians, GCIMS confirmation is virtually never done on-site. It is also not provided by all commercial laboratories.

On-site initial testing can provide both cost and time savings. It is particularly valuable to industries that need to determine prework fitness for duty (such as nuclear power plants); that administer tests for cause; or that monitor employees who had a drug problem, were placed in a treatment program, and are now back on the job.

On-site testing provides immediate assurance that such employees are drug-free. In some cases, preliminary action, such as reassigning the employee or sending the person home, may be taken based on a drug screen performed onsite or based on a result received by telephone. However, disciplinary or other action should be based only on written, confirmed test results.

Smaller companies may see in quick-test methods an opportunity to test easily on a small scale. Those methods may seem to be bargains because they require essentially no training or equipment. However, all such tests require subjective interpretation, and some have been shown to be highly inaccurate even when evaluated by testing professionals. Companies doing on-site testing should be sure the test method they choose has a proven accuracy that will hold up in court should an employee challenge the result. All positive initial results, regardless of the screening method used, should be confirmed by an outside laboratory.

Companies performing testing on-site should keep the following records:

* certification of instrument operator training

* records of instrument maintenance and service

* daily quality control records

* a log of the test results (often by code number)

Advantages of sending specimens to a good outside laboratory for both screening and confirmation include rapid confirmation of positive results, availability of expert witnesses who can testify in legal proceedings regarding both screening and confirmation methods, experienced drug-testing technologists, high-volume test equipment, and advice on how to set up urine collection procedures.

Not all laboratories can perform drugsof-abuse testing in a way that stands up to legal challenge. Criteria by which to judge drug-testing laboratories include the following:

* Laboratory certification. Laboratories certified under DHHS/NIDA guidelines can be counted on to provide accurate, reliable services. However, at present only 38 laboratories have DHHS/NIDA certification. Obtaining that certification is expensive and complicated, and many good laboratories are not in a position to pursue DHHS/ NIDA certification for reasons that have nothing to do with the quality of their services.

If not required by law to use a DHHS/ NIDA-certified lab, a company may choose to use a laboratory certified by the College of American Pathologists and the American Association of Clinical Chemists, which have a Forensic Urine Drug Testing (FUDT) program similar to the DHHS/NIDA program.

* Chain-of-custody procedures. In general, the major difference between laboratories is the degree of accountability or chain of custody they afford each specimen. Laboratories should have special handling procedures for employee drug-testing specimens. The specimens should be carefully inspected, documented, and stored.

n Staff qualifications. The laboratory director should have an advanced degree in chemistry and be certified by one of the appropriate boards or societies. The technical staff should have formal or on-the-job training in laboratory technology, chemistry, or biochemistry.

* Quality control procedures. The laboratory should include samples that have known drug concentrations with every batch of specimens analyzed. It should also regularly test specimens whose drug concentrations have been established by an outside source but are unknown to the testing staff.

* Technical assistance and expert testimony. Laboratory personnel should be able to give advice about drug testing, and a staff member should be available to give expert testimony in legal hearings.

* Supplies. Most laboratories provide specimen collection supplies.

* Result-reporting services. Laboratories vary in the turnaround times they guarantee. Reports relayed by telephone should be avoided because of the chance for error, the need for a permanent record, and confidentiality concerns.

Companies should inspect a laboratory not only at the time of selection but also at unannounced times throughout the year. In addition, companies should periodically confirm that correct results are being returned by sending the laboratory samples with known drug concentrations and certified drug-free samples mixed in with its regular employee specimens.

Whether the outside laboratory provides both screening and confirmation or just confirmation, it can be a good source of information for companies deciding what drugs to detect and what urine drug concentrations (cutoff levels) will be considered positive. The DHHS/NIDA guidelines require testing for marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines. Companies may choose to test for all or some of those drugs and may wish to include additional drugs in their testing programs if permitted by law. In addition, because tests are available at various cutoff levels for some drugs, companies must specify not only which drugs employee urine samples will be tested for but also at what cutoff levels.

A POSITIVE TEST RESULT SHOWS REcent use of a drug, but it does not indicate a person's impairment. Because fluid consumption and urine output vary greatly from one person to another, urine drug concentrations cannot be linked directly to a specific level of impairment.

A positive test indicates that the urine drug concentration is above the predetermined cutoff level. If a drug is present below this cutoff level, the test will be reported as negative. A positive test is further defined as a positive screen combined with a positive confirmation, in most cases by GC/MS. A sample with a positive screen and a negative confirmation does not fit this definition and should be reported as negative.

Erroneous test results, while uncommon, may be caused by insensitive test procedures, intentional adulteration by the donor, interference from other compounds present in the specimen, operator error, random error in the testing method, or specimen mishandling or mislabeling. Confirming by GC/MS virtually eliminates the chance of inaccurate results due to the first three problems. Requiring that initial and confirmation test results match substantially reduces the chance that technical errors will go unnoticed.

An employee should be provided the opportunity to explain a positive drug test. One way to do so is to ask employees at the time the urine sample is collected to list all medications they are taking. The list should be kept strictly confidential and should be referred to only in the event a sample tests positive. (The list should not be used to determine employees' medical conditions, nor should any testing be done other than the drug testing for which the employee has given consent.) Another option is to ask the employee to supply proof, usually in the form of a doctor's prescription, that the drug was used under the care of a physician for medical purposes.

Information provided by the employee should be evaluated by a medical review officer (MRO) before any action is taken following a positive drug test. The DHHS/NIDA guidelines define strict requirements for MROS for federal drug-testing programs, but many companies with drug-testing programs have developed a quasi-MRO function through consultation with in-house or contract physicians, assessment by the company's employee counseling and rehabilitation program, or reliance on laboratory staff for technical consultation.

The MRO is the ultimate fail-safe element in a testing program. Some of the commonly abused drugs do have legitimate medical uses. But it is also possible to obtain multiple prescriptions for controlled substances. In addition, only a very limited number of substances can produce misleading, though true, positive results.

For example, morphine appears in the urine of individuals taking codeine, a common ingredient in prescription cough medications. Morphine also appears in the urine of heroin users. An MRO would be in a position to judge whether the person who tested positive is using heroin, abusing codeine, or simply treating a cough.

EMPLOYERS SOMETIMES FEEL A drug abuser should be fired immediately. However, should an employee contest the disciplinary measures resulting from a positive drug test, a policy that tempers discipline with opportunities for rehabilitation may invite more sympathy from arbitrators and the courts.

EAPs that provide counseling and drug rehabilitation can be offered by the company directly or through a contract provider. If cost is a factor, a company can establish an effective EAP that uses community alcohol and drug rehabilitation services as referral outlets for addicted employees.

In many situations, creating EAPs or allowing employees with drug-abuse problems to participate in a treatment program may be beneficial to the company if doing so helps the company retain qualified and productive employees. After all, the ultimate goal of a drug-testing program is to ensure that all employees are productive and competent to perform their jobs.

This article is not designed to be a complete guide to drug testing. Companies should seek legal advice and more complete information before implementing a drug-testing program. Urine drug testing is not a panacea for the drug problem, but if used correctly and in concert with other efforts, it can be a formidable tool. When performed in a responsible manner, drug testing is safe and effective and should be feared only by persons who abuse illicit drugs.
COPYRIGHT 1990 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1990 Gale, Cengage Learning. All rights reserved.

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Title Annotation:The War on Drugs
Author:Petersen, Ann C.
Publication:Security Management
Date:May 1, 1990
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