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The job of identifying potential drug use by a commercial driver is subjective, only to be done by a trained supervisor.  All CDL holders must comply.

The Transportation Employee Testing Act – passed in 1991 and in full effect 1995 – specifies that employers in the transportation industry are responsible for maintaining alcohol- and drug-free workplaces. In other words, any driver-employee who is or could be called upon to operate a commercial vehicle cannot do so while under the influence of alcohol or drugs.

With this responsibility placed on employers as well as drivers (who by definition hold commercial drivers’ licenses, or CDLs), it is essential that supervisors of drivers be responsible for policing behaviors on a day-to-day basis. That is true in many respects: defamatory, sexually harassing, and discriminatory behaviors are regulated as well with specific means for prevention, enforcement, and redress. Safety around large commercial vehicles that occupy and move in the public space should similarly be managed carefully, effectively, and consistently. Supervisors, then, receive what is termed “reasonable suspicion training”. 

Supervisor training to identify possible on-the-job drug and alcohol use

All of which puts the employer into a challenging, subjective situation with regard to “reasonable suspicion.” Some erratic behaviors lead to obvious suspicion, but how does a supervisor make the determination? And can the mere task of sending an employee for drug and alcohol testing be a tool of harassment?

The law as regulated by the Federal Motor Carrier Safety Administration (FMCSA) protects against subjectivity. It stipulates three scenarios be considered:

  • When a trained supervisor observes adverse behaviors.
  • Testing is NOT warranted when an untrained person reports it. This prevents the law from being misused, perhaps as a means of undercutting an individual and otherwise causing nuisance testing. Testing should be applied only when there is reasonable cause to do so. 
  • When a trained supervisor who is not the employer observes suspicious behavior: In many situations in the freight industry, interaction occurs between individuals of different employers (often at warehouses and other depot settings). When a trained supervisor at Company A sees suspicious behaviors by someone who works for Company B, that supervisor is empowered and encouraged to contact Company B to suggest testing; that supervisor is also encouraged to contact law enforcement if the situation calls for it.

What constitutes actual suspicious behavior? Supervisor training manuals typically describe, in detail, such things as behavior, appearance, speech, and body odors as initial clues.

Rules on alcohol vary slightly

Final note: These rules and guides primarily apply to the use of controlled substances. Because alcohol is generally a legal substance an individual undergoing withdrawal symptoms, a “hangover,” is not a triggering behavior for testing. Only its use or presence in sufficient concentrations while operating a commercial vehicle is considered a violation of the law.

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Holders of commercial drivers’ licenses (CDLs) are required by federal law to be tested for drug use as a condition for hiring. Employers oversee the testing.

Since 1991, with the passage of the Omnibus Transportation Employee Testing Act, the drivers of all commercial vehicles – who by definition hold a commercial drivers’ license (CDL) – are required to be tested for drug and alcohol consumption under the following circumstances:

  1. Pre-employment (pre-employment drug testing for controlled substances only, not alcohol)
  2. Reasonable suspicion (when behavior suggests there may be active use)
  3. Post-accident (if a citation was issued, if there was a fatality or bodily injury, and if a vehicle was disabled such that it had to be towed away from the scene of the accident)
  4. Randomly (random drug testing on an ongoing basis among all holders of the CDL, including in sole-proprietor drivers)
  5. Return-to-duty (after failing a test)
  6. And follow-up (various circumstances)

And to be clear, this means anyone and everyone holding a CDL who does or could operate a commercial vehicle as a part of his or her job responsibilities. That includes employees of the largest long-haul freight companies, independent drivers and even volunteers, such as drivers of vans affiliated with houses of worship.

Reasons for drug and alcohol testing

With specific regard to pre-employment, the rationale should be clear: no driver should be a user of controlled substances and also responsible for operating a heavy vehicle on America’s roads and highways. Rather than address a substance abuse issue after a driver begins employment it’s better that this be done in advance. Drivers who cannot refrain from drug use in the hiring process should not be given this responsibility.

Why is alcohol use not tested in advance of employment? Alcohol can be detected in one’s urine for about 80 hours and in a hair follicle for up to three months. But alcohol consumption is legal off the job such that a pre-employment test – particularly the more aggressive (and expensive) application of a hair follicle procedure – would yield very little useful information. The various drugs tested for – marijuana metabolites/THC, cocaine metabolites, amphetamines, including methamphetamine and MDMA, opiates (including codeine, heroin and morphine) and pencyclidine (PCP) – can be detected between one and 30 days later in urine.

Inform employees and candidates that substance testing is required

The responsibility for testing is on the employer and individuals who are self-employed in contract work. Employers need to make sure driver applicants are fully informed of the commitment and requirement to have a workplace free of controlled substances and alcohol consumption the job. This responsibility to inform typically is done while advertising for the position and as an attachment to a driver application form. Implicit in submitting an application a driver is saying he or she will adhere to the policy and submit to testing under all required circumstances.

Also, an employer should make clear that the Testing Act, administered by the Federal Motor Carrier Safety Administration, will require random testing throughout the course of their employment. This fully underscores the all-encompassing nature of a drug- and alcohol-free workplace for commercial license holders.

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In most cases, when a traffic citation is issued it becomes necessary to test all CDL holders involved, even if they were not the recipient of the citation.

The reason the Federal Motor Carrier Safety Administration (FMCSA) requires post-accident drug testing of drivers and others in safety-sensitive functions* is to promote safety on the roads. This helps prevent accidents that endanger drivers and passengers.

It is the responsibility for all holders of commercial drivers’ licenses (CDLs) to remain sober and safe in their operation of a commercial vehicle – at all times. In most cases, drivers are subject to mandatory random testing for drug use as an ongoing condition of their employment, and alcohol testing when a trained supervisor deems it necessary due to observed behaviors. 

But in the case of an actual accident it is mandatory for any and all drivers involved to submit to drug and alcohol tests, with some conditions:

  • Fatality involved in the accident, citation issued– If police identify fault in any driver, all drivers holding a CDL need to be tested.
  • Bodily injury involved, citation issued– Even if there is no fault determined at the scene, drug and alcohol tests need to be conducted on holders of CDLs.
  • Bodily injury involved, no citation issued– If no citation is issued to any drivers, no tests are required.
  • At least one vehicle disabled in the accident, citation issued– If one or more motor vehicles in the accident is believed to be at fault, all drivers holding a CDL are required to have a drug and alcohol test.
  • At least one vehicle disabled in the accident, no citation issued– If there is no fault suspected at the scene such that police issue no citations, no tests need be conducted.

Post-accident testing is very time sensitive.

According to the Legal Information Institute/Cornell Law School publication on post-accident testing, alcohol and drug tests need to be performed “as soon as practicable following an occurrence.” It goes on to state the responsibility is on employers to do the test (almost always through third party testing firms).

Note that citations might not be issued in the immediate aftermath. Employers are responsible for testing if a citation is issued within eight hours of the incident. However, if a citation is issued later, up to 32 hours post-accident, a drug test still needs to be performed.

The law also states that “a driver who is subject to post-accident testing shall remain readily available” for such testing. If not, they can be deemed as having refused to submit to the test. It is the responsibility of the employer to inform the driver in the immediate aftermath of the accident of his or her responsibilities: They re required to stay close and in contact should the need for a test arise in the 32-hour time period.

* Safety sensitive functions include more than times while driving a commercial vehicle on the public roadways. It also includes when the commercial drivers license holder is at a shipping depot, terminal, other property (private and public) when loading or unloading a vehicle, or when waiting for a dispatch. It also includes when performing a safety inspection of the vehicle per legal requirements, or while repairing, obtaining assistance, or remaining in attendance of a disabled vehicle.

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Almost anyone working in transport – by land, sea, air, railroad, even pipelines – is responsible for public safety and they need to be substance free.

The U.S. Department of Transportation (DOT) implements the Transportation Employee Testing Act of 1991, which essentially requires all workers engaged in safety-sensitive positions to be subject to alcohol and drug testing. 

This is a broad-reaching bill that encompasses operators of motor vehicles (trucks and buses), ships, aircraft, railways, public transportation, and pipelines. Importantly, this includes regular operators in each of these industries (e.g., holders of commercial driver’s licenses in surface transportation vehicles), as well as those people who are technically on reserve or who operate equipment only occasionally. Small employers and self-employed individuals are not exempt, and the law applies to for-profit, non-profit and government employees (e.g., school bus drivers). Job titles are irrelevant: even volunteers are subject to testing if the vehicle could cause harm to occupants and other vehicles on the road. That is to say the volunteer van driver for your church is just as subject to testing as is the airline pilot, long-haul trucker, and ship captain.

While the basic rules for testing are the same between agencies, including how testing needs to be randomly administered, each individual mode of transport has its specific rules for drug testing employees through its respective operating administrations. Those offices are

  • Vehicular operations, Federal Motor Carrier Safety Administration (FMCSA)
  • Maritime, United States Coast Guard (USCG)
  • Public Transit, Federal Transit Administration (FTA)
  • Railway operators, Federal Railroad Administration (FRA)
  • Aircraft pilots, Federal Aviation Administration (FAA)
  • Pipeline operators and hazardous materials shippers by any means of transport, Pipeline and Hazardous Materials Safety Administration (PHMSA)

How random testing is administered

Because the application of randomized drug and alcohol testing is so broad, the administration of it is codified. This includes the following basic requirements:

Information on how the program works: This is a pragmatic matter, such that when an employee is called in for testing they understand it is standard operating procedure and no cause for alarm. But in real terms, it puts all employees on notice that working under the influence of drugs or alcohol is not permitted and could be grounds for termination or at least reprimand and mandatory counseling.

Similar communications is a requisite part of pre-employment communications. While standard across the industry, all notifications should include mention of the substance use testing.

Reason for testing: “Reasonable suspicion” means that any indication of potential substance use – slurred speech, erratic behavior, poor productivity, or an accident – can trigger a drug test. In safety-sensitive positions, this is required.

Randomized testing: A computer-generated system can select employees without bias for that-day drug testing. This ensures that all employees have an equal chance for being tested. The randomization also allows any individual to be tested several times, again without bias, such that passing a test is no license to use illegal substances once a first test is passed.

Smart employers will communicate this as a benefit – safety affects everyone – and pair it with employee assistance programs to help an individual achieve sobriety and still hold on to their jobs.

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The Department for Health and Human Services has formalized the procedures to test for drugs and alcohol as a condition for employment.

The U.S. Department of Health and Human Services includes among its objectives the support of drug free workplaces in the private sector. Its subordinate agency, the Substance Abuse and Mental Health Services Administration (SAMHSA), provides specific guidelines on how such employee drug testing programs are administered.

A chief concern is the procedure for sample collection for urine drug testing, or “urinalysis”. These need to be provided in a scientifically valid, fair, and equitable manner. So SAMHSA issued a Urine Specimen Collection Handbook for the Federal Agency Workplace Drug Testing Programs (October 2017) that includes the following standards:

Test administrator: The individual administering the test is knowledgeable of the collection procedure as prescribed by the HHS Mandatory Guidelines. The designated collector must also be knowledgeable of guidance provided by the federal Drug-Free Workplace Program, and be trained by a qualified trainer of correct specimen collection, understand how to managed problem collections (including the distinction between fatal and correctable flaws), and is beholden to collector responsibilities with regard to process, privacy of the tested individual, ensuring security of the specimen, and avoid conduct or statements that might be offensive or inappropriate. Test administrators also have to stay current on mandatory training with proper associated documentation.

The Procedure: After the test administrator ensures the supplies and setting – which ensures both privacy and authenticity (i.e., prevention of fraud) – the tested “donor” (employee) will need to do the following:

  1. Arrive on site at the appointed time. Failure to do so will trigger notification of the agency or employer.
  1. Provide photo identification to ensure the individual is indeed who is to be tested.
  1. Remove excess and unnecessary clothing that could be used to conceal items to adulterate or substitute the urine sample. The test administrator should provide security for any removed items. 
  1. Note: If items accompanying the donor appear to be an attempt to adulterate the sample, it is considered a “refusal to test.” Immediate notification to the donor’s supervisor will be made of this finding.
  1. Adhere to the basic collection procedure as detailed by the test administrator. This includes washing hands before the test to prevent adulteration.
  1. The donor is provided collection materials in a bathroom where the water supply is turned off. This is to prevent adulteration. (A moist towelette or restored water flow, post-sample collection, needs to be provided to allow the donor to clean up).
  1. The collection materials include a seal on the kit or the collection container. The seal should be broken in front of the donor or by the donor his or herself.
  1. The donor should provide the sample to the test administrator in less than four minutes, a time sufficient to ensure it is within an acceptable range of body temperature. 
  1. Test administrators inspect the sample for temperature (90 to 100 degrees F), unusual color, the presence of foreign objects, unusual odor (e.g., bleach) or other signs of adulteration. If abnormal characteristics are observed, a second sample should be gathered; if the donor refuses, it’s a refusal to test

All arguments over intrusiveness of these procedures have long been settled as it has become a standard operating procedure in the public and private sector, particularly for safety-related positions.

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The US DOT rules apply to all holders of commercial driver’s licenses in companies of all sizes. Consortiums enable smaller firms to do it right.

In a large company with, say, 400 employees who drive commercial vehicles as part of the company’s work, it’s mathematically easy to implement a random drug testing program to satisfy Department of Transportation (DOT) requirements on all commercial drivers’ licenses (CDLs). 

But what about the independent CDL operator, or the company with five or ten or twenty drivers on staff? In the case of the former, a “randomized, mandatory” drug test seems a little silly, given the driver him or herself would decide what day the test would take place. In the case of the latter, the management and execution of a drug or alcohol-testing program would be unwieldy and expensive.

How drug consortiums work

The solution for smaller employers and independent operators is to join in a drug testing consortium. This is a collection or association of companies and individuals who are joined within a single random testing pool. Otherwise known as third-party administrators, consortiums manage and implement the program, often even providing testing records to prove compliance with Federal Motor Carrier Safety Administration (FMCSA, a division of the US Department of Transportation) rules and regulations. 

For owner-operators who have few or no employees, there is no chance to opt-out of a testing program. Such individuals are still subject to regulatory mandates. The single-independent driver is required to join a consortium. 

Smaller companies (those with between one and 49 drivers) might be able to manage such a program on their own, but the requirements make it unlikely. For example, a FMCSA-compliant program would include the following:

  1. Establish a policy and communicate it to all employees
  2. Have a certified medical review officer (MRO) on staff or contract
  3. Conduct reasonable suspicion training for supervisors
  4. Conduct and maintain post-accident training
  5. Maintain records of tests completed
  6. Stay informed on regulatory changes

In the two decades since full implementation of the Transportation Employee Testing Act, the vast majority of smaller companies have joined in drug testing consortiums in order to achieve compliance. 

Drug testing as a benefit

But the effects of having a formalized program quite arguably go beyond “checking the box.” To the smaller employer, the communications of the program can have a beneficial effect on employee behaviors and morale. Professionally produced communications on the policy establishes the seriousness with which the company approaches a zero-use policy; by implication it also supports other components of a company’s safety culture. 

For employees who may be offered drugs to use in their off hours, they now have a reason to decline (“I can’t because I get tested at work”). And depending on company policy, an employee who fails a drug test can be retained and given appropriate counseling focused on abstinence.

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The credentials and training of a board-certified physician ensure matters of science and legal compliance in employee drug testing programs.

Drug and alcohol testing of employees – during and prior to their employment – is a means of ensuring a safe and productive workplace. In the private sector the decision to test is entirely voluntary in non-safety oriented work, but any employer with vehicles operating on land, sea, and air is responsible to meet the requirements of the U.S. Department of Transportation (DOT).

The regulations around DOT drug testing procedures are uniformly administered to ensure safety and fairness. Part of that objective is met with the mandatory inclusion of a Medical Review Officer (MRO) in all substance abuse testing. The MRO by definition is a licensed physician (MD or OD, board certified in the U.S., Canada or Mexico), and is someone with basic knowledge and clinical experience in controlled substance abuse disorders. The MRO should have some familiarity with medical explanations for laboratory confirmed drug test results, as it often happens when a tested individual is legitimately taking prescribed medications at the time of a drug test.

Specific tasks of the MRO

To ensure scientific validity in employer-mandated drug testing programs, the MRO performs very specific tasks, per DOT regulations, that include the following:

  • Review documentation.The reports from laboratories may have correctable or fatal errors, which the MRO is expected to see and then supervise the consequences thereof. Unclear and illegible documentation generated by a laboratory needs to be corrected or replaced. 
  • Verify and release to the employee.In the case of a confirmed positive test result, or one that was adulterated, substituted, or otherwise deemed invalid, the MRO is tasked with release of those results to the tested employee. 
  • Respond to a request for a split-specimen test.This typically occurs when a positive result is reported, or when it is reported as adulterated, at which time the MRO oversees the testing of the second half of the sample by a second laboratory. The second test specifically looks for the drug or drugs detected in the primary specimen.

Rules of confidentiality consistent with medical privacy

As with almost everything else having to do with an individual’s medical information, the MRO is responsible for maintaining the highest standards of confidentiality with both drug and alcohol test information. Unless explicitly authorized or required to share test results with a third party, the MRO is expected to keep that information restricted to the individual and his or her employer. The employee may override that by consenting to release of the information to an explicitly identified third party (person or organization).

Implicit in this is how the highly trained, board-certified physician has a great deal at stake in performing this duty. The MRO is as much a defender of a solid and equitable application of medical science as are lawyers who defend the Constitution.

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Breath alcohol testing is commonplace in workplaces, with its most basic tool being a handheld breath analyzing device. The goal is to save money and lives.

Breath alcohol testing devices – often referred to by one brand name, “Breathalyzer” ­– are used by policing agencies as well as companies that have drug and alcohol policies in place. Their use is almost always done in accordance with an established alcohol and drug-free workplace policy and implemented by a drug and alcohol testing service.

These “breathalyzers” operate according to the biological response to alcohol consumption: When a person consumes alcohol, it is absorbed by the body and enters the bloodstream. As the blood passes through the lungs, trace amounts of alcohol are left behind and mix with the air in the lungs.

The testing devices have a disposable mouthpiece that the test subject blows into, filling a chamber with a sample of their breath. The breath sample is then analyzed for any detectable alcohol content. This level is represented numerically, such as .080 BAC (which is the point at which a motorist can be considered under the influence and in violation of the law). BAC is an acronym that means Blood Alcohol Content or Blood Alcohol Concentration.

The breath alcohol test is usually performed twice. The lower of the two readings is then considered the accurate reading when test results are documented for possible evidence in litigation or court proceedings (as in the case of law enforcement testing drivers under the influence).

There are three main types of devices that are used: The Breathalyzer, the Intoxilyzer, and the Alco-Sensor. Each device uses a different technology to detect the evidence of recent alcohol consumption and possible intoxication.

The Breathalyzer unit has two vials in it that each contains a mixture of water, sulfuric acid, silver nitrate and potassium dichromate. When the test subject’s breath sample is mixed with the chemicals in one of the vials, it reacts to the alcohol in the breath sample and changes color. The color change in the reacted vial is then compared to the color of the unreacted vial by a photocell system within the device. The difference in the color change that is detected by the photocell system creates an electrical current that causes the needle of the device’s meter to move. There is a knob on the device that the operator then turns to move the needle backs to its starting point. The more alcohol content in the breath alcohol test sample, the more the knob must be turned to return the needle to the starting point. The level of alcohol is then read from the knob.

The Intoxilyzer uses infrared light; the ethanol alcohol molecule absorbs a specific wavelength of infrared light. This light is passed through the test sample inside the device. The light then hits a filter wheel that is specific for these wavelengths. The light passing through the filter is then detected by a photocell and converted into an electrical pulse. A microprocessor then interprets the pulses and determines the amount of light that was absorbed. This information is then calculated to determine the BAC level of the test subject.

The Alco-Sensor uses fuel-cell technology. The fuel cell inside the device has two platinum electrodes with an acid-electrolyte material between them. The alcohol in the test sample is oxidized by the first platinum electrode and creates an electrical current that passes through a wire to the second electrode. The more alcohol in the test sample, the greater the electrical current produced. An electrical-current meter measures the level of the current, and this information is then calculated by a microprocessor to determine the BAC level of the test subject.

The use of alcohol testing devices can save employers money in lost productivity, injuries, damage to property, and other effects of poor judgment made under the influence of alcohol. They can also act as a deterrent and a means to identify employees who are in need of addiction treatment.

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Part of having a drug and alcohol policy at your company is to enforce it when violated. But identifying substance abuse in the workplace is tricky. 

Companies with drug-free policies have different ways of educating employees on those policies and how the policies are implemented. One of the more challenging components of this is “reasonable suspicion testing,” which essentially requires supervisors to take on a role that may be unfamiliar to them.

In a survey of companies conducted by the Society for Human Resource Management (SHRM), about one third (35%) of employers conduct reasonable suspicion testing. This is less common than random testing (47%) and post-accident testing (51%), perhaps because many employers are unclear how to go about approaching an employee whose behaviors appear to be “off.”

When does a supervisor decide if an employee’s behavior might be drug- or alcohol-induced? The effects of all the street and pharmaceutical drugs that are abused are different across a broad spectrum: some substances cause “up” behaviors, such as jittery nervousness, while others are “downers,” which can include sleepiness, inattention to work and the work environment, or an irritation when interacting with others.

The short answer to that is employers should provide their managerial-level employees with reasonable suspicion drug and alcohol training. This may be available through your vendor for drug and alcohol testing services.

A slightly longer answer is how there are some key behaviors to watch for. From a Department of Transportation (DOT) guide, those include:

Changes in social interactions. This may include irritability, hostility, withdrawal, or excessive talkativeness, silliness, boisterousness, paranoia, hyper-sensitive reactions. The point is to look for changes from previous “baseline” behaviors.

Noticeable speech patterns. Again, this is about changes from the norm of the individual. Stimulants can lead to rapid, pressured speech while other people on other substances might have slurred, thick or incoherent speech. Nonsensical and dreamlike speech can be the result of hallucinogens.

Personality changes. This is a bit more subtle and could only be spotted by a trained individual who has known the employee in question for a period of time (preceding substance abuse).

Psychomotor changes. Aside from verbal and personality cues there are physical movements that might trigger suspicion. Poor eye-hand coordination, unsteadiness, restlessness/fidgeting, delayed reaction times, and falling into stupor can often (but not always) indicate substance abuse.

A note of caution: There might be an underlying illness or injury at fault, not substance abuse. This is why training – and testing, to rule out drug or alcohol abuse – could be a service to all employees.  

Also, just because a prospective employee passes the required pre-employment drug and alcohol testing, this doesn’t mean that they are immune to having a problem further down the road as a long time employee.

Along with a strong workplace drug and alcohol policy, providing your supervisors with reasonable suspicion drug and alcohol training can help you and your company avoid possible litigation. It will clarify to your supervisors what is, and what isn’t, their responsibility when dealing with employees exhibiting odd behaviors. It will inform them of the common drugs found in the workplace and their effects.

Employers should recognize when a situation requires a serious and immediate response from them, and how to address the situation in a professional manner. Knowing how to approach and interview a suspected employee in a manner that is respectful and not disruptive is a critical skill in reasonable suspicion training.

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How Confidentiality is Ensured in Employee Drug Testing

Privacy concerns have always pervaded the matter of workplace employee drug testing. The courts now define the rules and methods have adjusted appropriately.

In California and throughout the United States, employee drug testing has become more the norm than the exception. Testing workers’ urine or hair samples for evidence of use of illegal and abuse of prescription drugs began in the 1980s and has steadily increased. But along with its use has come concern for privacy and confidentiality. This has been addressed by the courts and in workplace policies that are used by both public and private employers.

The U.S. Supreme Court has ruled that the need for safety overrides the privacy rights of employees, as long as proper notice is given to those individuals who are to be tested. Also, the search must not be unreasonable.

This translates into applying testing with fairness to all employees and to those for whom there is some suspicion of use and impairment, such as post accident drug testing. The law also states that testing results cannot be indiscriminately divulged – the privacy provision that has been a concern since the very beginning of employee drug testing.

Since 1987, all federal agencies and contractors have required testing of workers for possible substance abuse, usually as a condition of employment (after a job offer is made but before the employee begins working). Most state and local governments, including the state of California, have adopted this practice. Nationwide, about 60 percent of large (500+ employees) private employers also conduct some degree of employee drug testing.

For both types of employees, the rules on drug test confidentiality are as follows:

  • All information obtained in a drug test is confidential to the employee and the person or persons whose job is to deal with employee drug testing and results.
  • If the employee consents for drug test results to be given to other parties, they need to state in writing who is authorized to receive it, the purpose of their receiving it, what exactly is to be shared, the time duration that access is granted, and that the information is not to be made public.
  • An employee whose confidentiality is compromised can sue those responsible (the employer, an individual or the testing laboratory).
  • Individuals who knowingly violate employee drug test results privacy can be charged with a misdemeanor, punishable by up to a year in jail.

In other words, the law is clear that confidentiality is to be maintained in very specific ways at all times.

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The legalization of marijuana in several states–for medicinal and recreational purposes–does not bar employers from implementing drug-prohibition policies. 

The standard of a "zero-tolerance, drug-free workplace" has entered uncharted territory. The use of marijuana – as a physician-prescribed medicine, and as a legal recreational substance – is now in the category of alcohol use. But it’s not really the same thing.

Keeping in mind that while marijuana has been legalized in some of the individual states, it remains illegal on the federal level. This alone illustrates the lack of resolve on this question.

Regarding what is legal in workplaces, California and most other states that have legalized medical marijuana in the 1990s have established some important guidelines. California Proposition 215 (1996) legalized its use by doctor’s prescription, but employers can still hire and fire at will, including for the use of cannabis. This provision for employers was written into Prop 215.

Further, a 2008 court case (Ross vs. RagingWire Telecommunications) determined a prospective employee who had tested positive for marijuana use in a pre-employment drug screening could be denied a job on that basis. The plaintiff argued his medical condition required its use, but the court ruled he has that right in a criminal, but not civil, scenario. In other words, the employer retains its right to decide.

Now with California Proposition 64 (2016), which legalizes recreational use as well, it may seem as if marijuana use is in the same category of alcohol. For now, the case precedence in Ross vs. RagingWire still applies. Most lawyers counsel employers that want to prohibit its use, off premises while not working as well as during the workday, to clearly communicate such a policy with frequency.

How drug tests work, and when tests are done

So it remains legal and defensible to have a zero tolerance, drug free workplace policy that prohibits marijuana use. Still, the employer should be cautious about how to implement such a policy.

Many companies test for marijuana and other controlled substance use as a pre-employment screen (typically, after a job offer is made, but conditional on the results of the test). This is most common in safety-critical workplaces and positions, such as vehicle and equipment operators, but can be applied to any and all positions including the executive suite.

It is a common practice for employers to require a drug test from employees that are hurt on the job, or whose behavior suggests active use. But notification in advance of such situations is strongly advised (posted signage, employee handbooks, pre-employment paperwork, etc.).

But what is the efficacy of testing for marijuana use? Urinalysis and blood tests generally identify recent use; hair analysis, which is more expensive and used less frequently, can identify use as far back as two months prior to the test.

A urinalysis is most frequently used. It does not detect the actual presence of active marijuana in the system, but rather detects the inactive marijuana metabolite (THC-COOH) indicating there has been marijuana ingested in preceding days and weeks. For the infrequent user, this metabolite is generally out of their system within several hours. For the regular user, the metabolite can be detected for a longer period preceding the test.

So to recap: You can test for marijuana use as a condition of employment and you are advised to communicate the policy clearly.

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Substance abuse is widespread, including among the employed. Employers can make a difference with drug-free policies and employee testing.

America’s opioid crisis shows no sign of abatement: In 2016, 42,200 deaths were attributed to abuse of pharmaceutical opioids, synthetic versions of opioids, and heroin. Overall drug deaths for the year numbered 63,600 – up from 52,400 total in 2015, according to the U. S. Department of Health and Human Services’ Centers for Disease Control and Prevention.

Those deaths represent only a fraction of ongoing illegal drug use. The American Society of Addiction Medicine, a non-profit organization, says that 20.5 million Americans over the age of 12 have a substance abuse disorder– only 2.6 million of whom use prescription pain relievers or heroin, with the remainder using substances that include marijuana, alcohol, cocaine, methamphetamines and other types of prescription drugs.

For employers, this means that a meaningful portion of the labor pool uses drugs in some form or fashion with regularity. This can incur hazards and costs in the workplace – and is a primary reason why companies have workplace drug and alcohol policies and mandatory employee drug testing programs.

Drug and alcohol abuse can be expensive. Worker’s compensation claims due to a substance-related injury or death can accompany extensive legal liabilities for your company if there are injuries to third parties.

By some estimates, this costs U.S. employers in excess of $81 billion dollars a year because about 70 percent of users are employed. While significant progress has been made with the majority of companies adopting strong drug and alcohol policies, the battle is far from over. It continues to require an ongoing effort, and success minded employers now have a variety of tools at their disposal to help in dealing with the problem. Identifying the problem is the first step in helping users get treatment and remove hazardous individuals from the workplace.

Post accident testing can be an added layer of protection for your company. 
Federal surveys show that in the last year 24% of workers questioned admitted to drinking at least once during the workday, and 16% of emergency room patients injured while at work tested positive for alcohol when given a breathalyzer test.

What steps can employers take? There are several:

  1. By adopting strong drug and alcohol policies in the workplace, companies are experience positive It starts at the top, with company leadership establishing a commitment and funding the programmatic tools for eliminating workplace substance abuse.
  2. Along with these policies, companies engage testing services to screen potential employees with pre-employment drug and alcohol testing.
  3. Company supervisors can now receive “reasonable suspicion” drug and alcohol training that prepares and enables them to identify potential problems among current workers in the
  4. Companies have also found that utilizing random drug testing in the workplace helps keep their workforce healthy and productive, maximizing growth and

Employees who are involved with drug and alcohol abuse are less productive and less reliable. Along with having trouble showing up to work on time, they take more unscheduled days off. And co-workers who have to pick up the slack can be resentful, creating a company-wide morale problem. Substance abusers change jobs more often, and this becomes an added expense due to the time required to train replacements for the employee you lose.

To be clear, it’s not just drugs: Employees with an alcohol problem are nearly three times more likely to have injury related absences than employees who don’t abuse alcohol.

This is a problem that is too expensive to ignore. Consider establishing a drug-free workplace in policy and practice, perhaps with the guidance of specialists.

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Employee Drug Testing: Eight Don'ts

The business of testing employees suspected of being under the influence can be a tricky and sensitive matter. It is, therfore, strongly advised to be aware of what to do and what not to do.

  1. Don't ever drug test your employees without a company Drug & Alcohol Policy in place that clearly states you will test your employees for drugs. You must have a document in place that outlines your policy on the use of drugs and alcohol in the workplace.
  2. Don't create a Drug & Alcohol Policy without checking your state and local laws regarding employee drug testing. Assume that each and every state has written its own state law on this matter. You can go onto the United States Department of Labor (USDL) website to obtain the drug testing laws in your own state.
  3. Don't ever allow an employee drive his or herself to the drug testing facility if you suspect they are under the influence of drugs or alcohol. You could be responsible and liable if that employee is in an accident on the way to the facility. Have a supervisor drive them to and from the facility.
  4. Don't ever allow an employee out of your immediate site if you suspect they are under the influence of drugs or alcohol. They will give you any excuse to find a way out of the drug testing. Make they are accompanied all the way to the testing facility.
  5. Don't ignore a drug or alcohol problem if you identify one. It is only going to get worse, not better. Remember, the safety of other employees is at risk if a problem such as this is not resolved and your company might be held liable.
  6. Don't wait until you have a problem with drugs in the workplace to act. A good company Drug & Alcohol Policy and pre-employment drug testing are a good way to stop that problem before it begins.
  7. Don't wait more than 2 hours to test an employee if they are under the influence of drugs or for every beverage containing alcohol.
  8. Don't take another employee’s word that another employee is under the influence of drugs or alcohol while on the job. Investigate the allegations for yourself, then document it and then accompany the individual to the drug testing facility if you deem it necessary.

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The Rules on Drug Testing and Legal Privacy in California

Employers in California and nationwide are legally able to test for drug use in employees and prospective employees. But there are privacy restrictions.

Reportedly, more than 60 percent of Fortune 500 companies conduct some form of employee drug testing, either as a pre-employment screen only or routinely and randomly with employees engaged in safety-related tasks. Additionally, testing may be done for cause, such as when an accident occurred or when an employee’s behaviors suggest there may be drug abuse in that individual. All employees of and many contractors to the federal government are drug tested as well.

However, legal challenges and legislative acts have placed some limits on drug testing in the name of privacy. The dictates of the 4th Amendment to the U.S. Constitution, protection against unusual search and seizure, as well as the 9th Amendment, granting certain privacy rights, ensure that drug testing has its limits. Here is how employers in California employers implement drug testing:

  • Transportation workers and other safety-related jobs – Random drug testing of persons in sensitive and safety related positions, including air traffic controllers, pilots, bus drivers and railroad engineers is permitted, including when there is nothing to suggest such a drug test needs to be conducted (a “warrantless search”). This is both federal and California law.
  • Pre-employment drug testing – Private employers can conduct drug tests on employees, not as a condition of offering a job but after the offer is made and accepted. An employer is able to withdraw the job offer if test results are positive.
  • Reasonable suspicion drug testing – A private employer may test an employee for drug use if there is a “compelling” reason that justifies the search, such as a safety infraction.

But privacy protections remain, and individual states have some ability to regulate privacy rules to state standards. Under the rules and court challenges to California’s Drug-Free Workplace Act of 1990, employers who choose to implement drug-testing programs need to state that detail in an employee handbook. How the program is implemented and communicated needs to be fair, clear and consistent.

California’s strong history of privacy rights affect drug testing

Because California – and the City of San Francisco in particular – has a strong history of protecting individual privacy rights, companies based elsewhere but with operations in the state need to pay close attention to how the courts are ruling on drug testing. Additionally, the legalization of medical marijuana has led to legislative efforts, thus far unsuccessful, to protect employees from being fired from their jobs solely due to use of medicinal cannabis.

A voter referendum is proposed for the November 2012 election that would provide medical marijuana users with the same protections as those who are given prescription drugs. However, such protections would not extend to persons in safety-critical positions.

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Employee Drug Testing: Eight Do's

Drug testing of employees is serious, sensitive business and it is vital that it be done "by the book". If performed correctly, employee drug testing becomes advantageous rather than a source of confusion at one end of the scale and legal issues on the other end.

Here's a short list of "do's" as opposed to "dont's" that can help make the process of drug testing employees go seamlessly: 

  1. Do give every employee a copy of your Drug & Alcohol Policy and make certain you have a signed receipt in his or her employee file. You always want proof that they received and agreed to read your company's policy.
  2. Do include in your Drug and Alcohol policy that you can drug test your employees for any reason. Specifying that you can test them at any time for any reason gives you latitude for drug testing any employee.
  3. Do document any incident involving drug or alcohol misconduct at your company. If the incident isn't documented in writing it is the same as never having been committed. Documentation will become very important in the grounds for dismissal or unemployment claims.
  4. Do make sure that the company you select to perform your employee drug testing uses a Substance Abuse and Mental Health Services Administration (SAMHSA) certified drug testing laboratory. They set the standards and guidelines for drug testing laboratories. They provide a list of approved drug testing labs on their website.
  5. Do know whether your company is required to be in a drug free workplace program.
  6. Do know whether the company you hired to perform your employee drug testing is trained under 49 CFR Part §40. A trained collector will make all the difference when minimizing potential errors in the drug testing process. Ask the facility for a list of certificates for each of their collectors stating they have completed the required training.
  7. Do have your supervisors attend drug and alcohol recognition training. Unless the employee’s suspected behavior is blatantly noticeable; you will do not know what to look for.
  8. Do have your employees on a time limit regarding how long they will be the testing facility. Require the employee to arrive at the drug testing site within a reasonable amount time.

When the Workplace Benefits from Employee Drug Testing

Drug-free workplaces have become the norm since the late 1980s. How this has benefited employers – and employees – is a major reason why.

The federal government, state government agencies and private employers have been instituting drug-free workplace policies since the late 1980s. The effect has been a measurable decrease in employee drug use in the two decades since. According to a 2006 report from the American Management Association, a majority (62 percent) of employers have drug testing programs. In some sectors – government, professional sports and all employers regulated by the U.S. Department of Transportation – the portion of such employers who perform employee drug testing is nearly 100 percent.

What are the benefits to those employers? It may have to do with company policies, and in some cases because of the nature of what the company provides. But four key reasons for implementation of drug testing are cited most often:

  • Fewer worries about accidents or theft – An individual with addictions or who habitually uses controlled substances will have reduced cognitive abilities. In safety-critical positions – such as where employees operative heavy machinery, including motor vehicles – that can be extremely dangerous. When a person’s drug use is expensive, that individual might have a greater propensity to theft.
  • Reduced absenteeism and productivity – In an administrative position, drug use can lead to more sick days and tend to accomplish less and make errors.
  • Deterrence value – Employers, in both the private sector and with the government, will see far fewer drug users in job applicants, when the drug-free workplace policy is advertised in recruitment communications.
  • Reduced liability concerns – An employer whose employee is the cause of mishaps (safety or business errors) may effectively bear heavy costs in a lawsuit.

These benefits trickle down to employees. The work team with a member that is consistently making mistakes or absent is beset with a heavier workload. Drug-free workplaces operate free of this problem.

Where the employee benefits from employee drug testing

There is an additional benefit as well – to employees. Many companies provide drug-abuse rehabilitation programs to their staff. This varies by company policy, of course, but there are thousands of cases where the employment incentive led individuals into rehab, either on their own or within an employer-sponsored employee assistance program (EAP).

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