Case study: drug testing

A doctor had reason to believe that an employee was using marijuana prior to coming to work.

Adoctor had reason to believe that an employee was using marijuana prior to coming to work. She frequently had an aroma of it on her clothing after returning from lunch. He felt she was “distracted and inattentive,” and that her dental assisting skills had deteriorated over several months. The doctor required her to take a drug test. She refused and threatened to file a lawsuit for violating her constitutional privacy rights. Not wanting to get sued and not knowing what his employer rights were, the doctor relented.

Considerations

Testing for illegal drugs can help employers screen out substance abusers. Research has shown that substance abusers have higher rates of absenteeism, workplace accidents, and health insurance claims, which can lower productivity and increase employers’ costs.

Employers who screen applicants for illegal substances must comply with procedural standards set by state and federal laws. Employers who improperly conduct or disclose medical information can be liable for defamation of character, invasion of privacy, and other torts.

While there are federal laws regarding drugs in the workplace and drug testing - such as the Drug-Free Workplace Act (DFWA) - many states have passed their own drug-testing laws, and these laws vary from state to state. While random drug testing is permitted in some states, ongoing annual or periodic physical examinations or drug testing is generally limited to situations that are job-related and/or required by business necessity.

Most employers can require an applicant, as a condition of being hired, to successfully pass a “post-offer/pre-employment” examination which includes a drug screening. Employers typically make an offer of employment contingent upon satisfactory completion of a physical examination and drug testing. A key point here is that an offer of employment must be made before the applicant is required to take the test.

Federal and state disability discrimination laws are the major sources for determining legal requirements governing physical examinations and medical tests. The Americans with Disabilities Act and similar state laws restrict the timing of medical tests and physical examinations, the uses of this information, and the manner in which the results are handled or disclosed.

Solutions

Drug-testing requirements and regulations are quite stringent and vary from state to state. Therefore, it may not be practical to have applicants or current employees tested, yet you still want to do all you can to protect yourself, your business, your patients, and other staff members.

Develop a written policy on drug testing and fully explain the drug policy to staff. The policy should read in part: “If there is reasonable cause to suspect that you are under the influence of any illegal or nonprescribed drugs, you may be required to immediately submit to a medical examination and/or submit to urine, blood, saliva, breath, and/or hair testing for drugs or alcohol. An employee’s acceptance of medical examinations and testing is a condition of employment. Therefore, refusal to submit to a drug or alcohol test will be considered equivalent to a confirmed “positive” test and will result in immediate disciplinary action, which may include discharge.”

“Reasonable cause” may be related to the employee’s appearance, behavior, speech, excessive absenteeism, frequent accidents, declining performance, or situations involving safety, security, and accidents.

Such a policy warns any drug users in your employ that they may be subject to testing. It also gives you the option of having an employee tested if illegal drug use is suspected.

Employers conducting drug tests also should develop a policy for dealing with false-positive results. False-positive tests can result from legally-prescribed medications which cause chemical reactions similar to illegal substances. Lab workers also can make errors which create false-positive results. In some cases, employers might be legally bound to offer a retest - using the same or a more rigorous drug screening - to persons who test positive.

If the drug or alcohol use is affecting work performance, the safest approach is to focus on the work deficiencies, not your suspicions of drug or alcohol use. Document an employee’s job performance and the behavior, then take appropriate remedial action. This would normally include the use of a form, such as our Employee Counseling Memo (Form #418). If the problem is not corrected, it is time to take disciplinary action which could include discharge. Before taking this action, it is always advisable to consult with a labor law specialist.

Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For over 25 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. Both authors are members of the Academy of Dental Management Consultants. To receive a complimentary copy of the company’s quarterly newsletter or to learn more, contact them at (800) 679-2760 or at www.bentericksen.com.

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