Page 89 - Occupational Health & Safety, June 2018

human body very quickly, so reasonable suspicion alcohol tests must be conducted within eight hours of the suspicion. For reasonable suspicion drug tests, there is a little more time—typically 24 to 32 hours. But the best practice is to conduct the test- ing as soon as there is suspicion. The more time that elapses between the suspicion and the test, the more likely it is that the employee will test negative.
7. Failing to follow through with rea- sonable suspicion testing after hearing the employee’s excuse. Another common mistake that often occurs with reasonable suspicion testing is that the employer ac- cepts the employee’s explanation as to why he is acting like he is impaired by drugs or alcohol. Common excuses include:
■ I didn’t get enough sleep last night.
■ I am having a reaction to my allergy [or other] medication.
■ I stopped taking my prescription medication and am trying to adjust.
■ I’m hung over from last night.
■ I’m just depressed because of [a death in the family] [my divorce] [fill in the blank].
Employers sometimes decide that the employee’s excuse sufficiently explains the behavior and do not follow through with the reasonable suspicion testing. But if there is reasonable suspicion to test and trained managers have determined that testing should be conducted, then the test- ing still should occur regardless of the em- ployee’s explanation. Documentation and consistency are critical for any reasonable suspicion circumstance, whether it results in testing or not.
8. Failing to train supervisors. Once a drug and alcohol testing policy is ready to be implemented, the company should train all supervisors to ensure that they under- stand the policy and know how to enforce it. Without such training, supervisors often do not read the policy or assume that the Human Resources Department (or some- one else) will enforce it. Additionally, su- pervisors often will not enforce the policy because they do not know how to make reasonable suspicion determinations and are afraid of making the wrong decision. All of these issues should be addressed in a training session that answers supervisors’
questions and makes them comfortable with the policy and its procedures.
9. Failing to recognize—and define— “refusing to test.” Many workplace drug and alcohol testing policies do not define “refusing to test” and provide no disciplin- ary consequences for it. This is a serious mistake because employees routinely en- gage in evasive behaviors to avoid a drug or alcohol test. Such behaviors may con- stitute “refusing to test” and should lead to termination.
One of the most common examples is delay: Many employers overlook an em- ployee’s excuses to delay the drug or alcohol test for as long as possible. An employer’s written policy should include a clear and comprehensive definition of refusing to test, such as: “Refusal to submit to a test” includes, but is not limited to: excessive de- lay in reporting for a required test; refusing or failing to provide a specimen, or refusing or failing to attempt to provide a specimen without an adequate medical explanation; adulteration or substitution of a specimen, or attempting to adulterate or substitute a specimen; failing to complete any paperwork required by the collection facility; failing to remain at the testing site until the test is com- pleted; failing or refusing to submit to a sec- ond test that may be required by the collector or the company; or, failing to cooperate with any aspect of the testing process.
10. Conducting overly broad post- accident or post-injury testing. Post- accident testing is restricted or prohibited under some state and local drug testing laws. In states where it is permitted, em- ployers also should be aware of recent Occupational Safety and Health Admin- istration (OSHA) guidance stating that there should be a “reasonable possibility” that drugs or alcohol could have caused or contributed to the accident. Testing should not be conducted in circumstances where drugs or alcohol could not have been a factor in the accident, for example, insect stings, animal bites, allergic reac- tions, repetitive stress injuries, injuries re- sulting from pre-existing illnesses (such as diabetes, epilepsy, etc.), slips and falls on ice, among other things.
Even before OSHA’s recent guidance, I warned employers not to conduct post-
accident testing after every trivial injury or illness, because it could appear dis- criminatory or retaliatory (like workers’ compensation retaliation or disability dis- crimination). The better practice is to in- clude language (unless different language is required or permitted by applicable state or local law) that 1) the employee’s acts or omissions caused or contributed to the ac- cident; 2) there is a reasonable possibility that drugs or alcohol could have caused or contributed to the accident; and 3) there was a serious injury requiring immediate medical attention away from the scene of the accident or there was serious property or vehicle damage.
Employers should consult with counsel to ensure their drug and alcohol testing policies comply with all applicable laws and thoroughly address the practices that the employer wants to enforce in its workplace.
Kathryn J. Russo is a Principal in the Long Island office of Jackson Lewis P.C., where she has worked for 22 years. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws and is the Leader of the firm’s Drug Testing and Sub- stance Abuse Management Practice Group.
Ms. Russo assists clients with workplace problems involving drugs and alcohol and gives advice about compliance with all per- tinent drug and alcohol testing laws. She prepares substance abuse policies to comply with all federal drug and alcohol testing regulations (including all agencies of the U.S. Department of Transportation), as well as the drug and alcohol testing laws of all 50 states. In addition, she defends employ- ers in litigation where drug and alcohol test results are at issue, and frequently conducts “reasonable suspicion” training for employ- ers in connection with their substance abuse policies. She is the editor and a contributor to Jackson Lewis’s Drug and Alcohol Testing Law Advisor Blog, www.drugtestlawadvi- sor.com, a site addressing developments in workplace drug and alcohol testing. She is a member of the Drug And Alcohol Testing Industry Association as well as the Suffolk County Bar Association’s Labor and Em- ployment Committee.
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