Employee Drug Testing
As companies nationwide have felt the impact of drugs in the workplace, an increasing nuraber are battling the problem through drug-free workplace policies, employee education, drug testing, employee assistance programs and even undercover drug busts. If your company has joined the war against drugs, make sure you understand the legal issues involved-especially if you're deciding whether to hire and fire based on drug tests. Make a wrong move and you can land in court, defending your company against charges of negligence, violation of privacy, defamation, or violating the Americans with Disabilities Act (ADA) or Title VII of the Civil Rights Act. Here are some areas of potential liability.
Passing the tests on testing
"The rights of employers in testing are becoming more clear," says Philadelphia employment lawyer Jonathan Segal of Wolf, Block, Schorr & Solis-Cohen. A rash of lawsuits in the 1980s challenged the right of employers to conduct drug tests, but by now that issue has been resolved: Private employers may screen employees with preemployment testing, investigate accidents by testing those involved and conduct best drug tests. Recent litigation has focused not on whether an employer may test but on how the test is done.
For preemployment screening, the ADA requires that medical exams not be done before the applicant has received a conditional offer of employment, but it specifically excludes drug tests. However, many companies hoping to avoid defamation suits retain a medical review officer to examine test results and possibly talk with the person concerned, to see if there's an innocent explanation for a positive test result. In some interpretations, that turns a drug test into a medical exam. "Prudence dictates extending a conditional offer," Segal says. "So does common sense. There is no reason to incur the cost and concomitant risk of a test if the applicant is not otherwise qualified."
Segal advises employers to conduct the test immediately after making the conditional offer, so the applicant doesn't have enough time to eliminate drugs from his system. Then wait to begin employment until you receive the negative report. "It's easier to keep an applicant out of the workplace than it is to remove an employee from it."
In unionized companies, management is required to subject drug testing of employees-but not applicants-to collective bargaining. Management may not unilaterally establish a best-testing program without notifying the union and bargaining if asked. "Unions bitterly oppose best testing," Segal says, noting that most will grudgingly accept testing on reasonable suspicion.
About a fifth of the states have enacted laws restricting employers from using certain kinRAB of tests or testing under certain circumstances. If you're doing business in several states, it can be difficult to keep track of what's legal and what's not in each state. The Institute for a Drug-Free Workplace has compiled a 600-page 1997-98 Guide to State and Federal Drug-Testing Laws. (See the HRMagazine section of SHRM Online, http:// www.shrm.org, for ordering information.)
Respecting workers' privacy
Almost every state allows lawsuits over invasion of privacy. To prevail, the applicant or employee has to show that the employer intruded upon his or her privacy in a way that a reasonable person would find highly offensive. Quite a few cases have addressed this issue with respect to drug testing, given the intrusive nature of requiring urine samples. "By and large, courts are upholding the drug testing," says Mark de Bernardo, executive director of the Institute for a Drug-Free Workplace in Washington, D.C. "When you do it right, courts apply a balancing test between individual privacy and the safety of other workers"-and they generally side with employers trying to eliminate drug use to protect the safety of other workers, he says.
The key is avoiding unnecessary intrusion. Sending a job applicant or employee into the bathroom with a cup is one thing; watching while he provides a sample is another. If you have reason to think the person is cheating, that's likely a good enough reason to watch, says Lewis Maltby, director of the ACLU's National Task Force on Civil Liberties in the Workplace. Otherwise, back off. "Don't watch unless you really have to," Maltby says. "What would you say if a judge asked, `Why did you subject this person to a virtual strip search?'"
Likewise, inappropriate inquiries into the use of valid prescription drugs might count as an invasion of privacy.
If your drug-testing policy includes testing employees based on "reasonable cause," be sure your managers have been adequately trained in recognizing drug and alcohol abuse. In a California case decided last year, a manager at a baseball card publisher suspected that an employee had been drinking and asked her to take a drug test. When she refused, she was fired. The employee sued, claiming violation of privacy. A California appellate court agreed, asserting that the manager exercised poor judgment in demanding the test. (Craslawsky v. The Upper Deck Company, 97 CDOS 5317, California Appellate Court, 1997)
In most cases, Segal says, you can discipline an employee suspected of being under the influence based on performance, without inquiring into the cause. Declining productivity, erratic behavior, excessive absenteeism, carelessness-all these "signs" can form the basis for progressive discipline with no need for a "reasonable suspicion" drug test-and risk of a privacy suit.
Guarding against negligence
If you're making employment decisions based on drug tests, be sure to use a reputable lab. Otherwise, you could be held liable for false positive results. Maltby notes that so far, in cases of sloppy chain-of-custody or shoddy testing procedures, liability has fallen not on the employer but on the on the drug testing lab issuing the false report. "These were well-established labs that used slipshod procedures," Maltby says. But if an employee could convince a court that the employer should have known the lab was disreputable, the employer could be liable for negligence.
Staying out of trouble here is easy. The National Institute on Drug Abuse (NIDA) has established standarRAB for drug testing labs; be sure to use only NIDA-certified labs. "If the employer uses a federally certified lab, the chance of liability is next to none," Maltby says. Besides, it's in your company's interest to avoid erroneous test results. Consider the cost if you fire a good employee over a false-positive drug test.
Beware of defamation
While the risks of liability for negligence or invasion of privacy are fairly small, lawsuits over defamation pose a very real threat. The issue here concerns whom you tell about an applicant or employee's test results and whether you have, in effect, broadcast someone's drug abuse (or perceived abuse). A jury ruling that an employer has defamed someone can tack on damages for pain and suffering.
Maltby notes that truth is not necessarily a defense. Even if the information is true, you can be held liable for telling others "with malice." Accordingly, think carefully about whether the people you're passing information to really need to know. "If they don't need to know in order to do their job, don't tell them," he says. While an employee's immediate supervisor should know about test results and options explored, ch
As companies nationwide have felt the impact of drugs in the workplace, an increasing nuraber are battling the problem through drug-free workplace policies, employee education, drug testing, employee assistance programs and even undercover drug busts. If your company has joined the war against drugs, make sure you understand the legal issues involved-especially if you're deciding whether to hire and fire based on drug tests. Make a wrong move and you can land in court, defending your company against charges of negligence, violation of privacy, defamation, or violating the Americans with Disabilities Act (ADA) or Title VII of the Civil Rights Act. Here are some areas of potential liability.
Passing the tests on testing
"The rights of employers in testing are becoming more clear," says Philadelphia employment lawyer Jonathan Segal of Wolf, Block, Schorr & Solis-Cohen. A rash of lawsuits in the 1980s challenged the right of employers to conduct drug tests, but by now that issue has been resolved: Private employers may screen employees with preemployment testing, investigate accidents by testing those involved and conduct best drug tests. Recent litigation has focused not on whether an employer may test but on how the test is done.
For preemployment screening, the ADA requires that medical exams not be done before the applicant has received a conditional offer of employment, but it specifically excludes drug tests. However, many companies hoping to avoid defamation suits retain a medical review officer to examine test results and possibly talk with the person concerned, to see if there's an innocent explanation for a positive test result. In some interpretations, that turns a drug test into a medical exam. "Prudence dictates extending a conditional offer," Segal says. "So does common sense. There is no reason to incur the cost and concomitant risk of a test if the applicant is not otherwise qualified."
Segal advises employers to conduct the test immediately after making the conditional offer, so the applicant doesn't have enough time to eliminate drugs from his system. Then wait to begin employment until you receive the negative report. "It's easier to keep an applicant out of the workplace than it is to remove an employee from it."
In unionized companies, management is required to subject drug testing of employees-but not applicants-to collective bargaining. Management may not unilaterally establish a best-testing program without notifying the union and bargaining if asked. "Unions bitterly oppose best testing," Segal says, noting that most will grudgingly accept testing on reasonable suspicion.
About a fifth of the states have enacted laws restricting employers from using certain kinRAB of tests or testing under certain circumstances. If you're doing business in several states, it can be difficult to keep track of what's legal and what's not in each state. The Institute for a Drug-Free Workplace has compiled a 600-page 1997-98 Guide to State and Federal Drug-Testing Laws. (See the HRMagazine section of SHRM Online, http:// www.shrm.org, for ordering information.)
Respecting workers' privacy
Almost every state allows lawsuits over invasion of privacy. To prevail, the applicant or employee has to show that the employer intruded upon his or her privacy in a way that a reasonable person would find highly offensive. Quite a few cases have addressed this issue with respect to drug testing, given the intrusive nature of requiring urine samples. "By and large, courts are upholding the drug testing," says Mark de Bernardo, executive director of the Institute for a Drug-Free Workplace in Washington, D.C. "When you do it right, courts apply a balancing test between individual privacy and the safety of other workers"-and they generally side with employers trying to eliminate drug use to protect the safety of other workers, he says.
The key is avoiding unnecessary intrusion. Sending a job applicant or employee into the bathroom with a cup is one thing; watching while he provides a sample is another. If you have reason to think the person is cheating, that's likely a good enough reason to watch, says Lewis Maltby, director of the ACLU's National Task Force on Civil Liberties in the Workplace. Otherwise, back off. "Don't watch unless you really have to," Maltby says. "What would you say if a judge asked, `Why did you subject this person to a virtual strip search?'"
Likewise, inappropriate inquiries into the use of valid prescription drugs might count as an invasion of privacy.
If your drug-testing policy includes testing employees based on "reasonable cause," be sure your managers have been adequately trained in recognizing drug and alcohol abuse. In a California case decided last year, a manager at a baseball card publisher suspected that an employee had been drinking and asked her to take a drug test. When she refused, she was fired. The employee sued, claiming violation of privacy. A California appellate court agreed, asserting that the manager exercised poor judgment in demanding the test. (Craslawsky v. The Upper Deck Company, 97 CDOS 5317, California Appellate Court, 1997)
In most cases, Segal says, you can discipline an employee suspected of being under the influence based on performance, without inquiring into the cause. Declining productivity, erratic behavior, excessive absenteeism, carelessness-all these "signs" can form the basis for progressive discipline with no need for a "reasonable suspicion" drug test-and risk of a privacy suit.
Guarding against negligence
If you're making employment decisions based on drug tests, be sure to use a reputable lab. Otherwise, you could be held liable for false positive results. Maltby notes that so far, in cases of sloppy chain-of-custody or shoddy testing procedures, liability has fallen not on the employer but on the on the drug testing lab issuing the false report. "These were well-established labs that used slipshod procedures," Maltby says. But if an employee could convince a court that the employer should have known the lab was disreputable, the employer could be liable for negligence.
Staying out of trouble here is easy. The National Institute on Drug Abuse (NIDA) has established standarRAB for drug testing labs; be sure to use only NIDA-certified labs. "If the employer uses a federally certified lab, the chance of liability is next to none," Maltby says. Besides, it's in your company's interest to avoid erroneous test results. Consider the cost if you fire a good employee over a false-positive drug test.
Beware of defamation
While the risks of liability for negligence or invasion of privacy are fairly small, lawsuits over defamation pose a very real threat. The issue here concerns whom you tell about an applicant or employee's test results and whether you have, in effect, broadcast someone's drug abuse (or perceived abuse). A jury ruling that an employer has defamed someone can tack on damages for pain and suffering.
Maltby notes that truth is not necessarily a defense. Even if the information is true, you can be held liable for telling others "with malice." Accordingly, think carefully about whether the people you're passing information to really need to know. "If they don't need to know in order to do their job, don't tell them," he says. While an employee's immediate supervisor should know about test results and options explored, ch