MISTAKES PEOPLE MAKE BY: JOE REILLY, JOE REILLY & ASSOCIATES, INC
This is the fifth in a series of articles that will highlight actual mistakes that occur during the process of workplace drug & alcohol testing. The intent of these articles is to alert folks as to the importance of taking the time to perform drug and alcohol testing services correctly and without flaws. Of course proper training and consistent re-training is the key to preventing the mistakes that will be discussed.
T
his article will focus on random testing and the mistakes often made in the process of implement-
ing a random drug and alcohol testing program. One of the most common mistakes that I hear about can be seen in the scenario that follows. An employer calls the third party administrator (TPA) and says “Hello, Joe can you make ar- rangements for a random test. Mary, one of our employees is acting real funny, her productivity if off, she has some unex- plained absences, and is often late for work. Her clothes smell like marijuana. We need a random test on Mary.” You can clearly determine from this circum- stance that there is nothing random about this. My biggest concern is that if the employer or collector marks this as a random test, and it is positive and ad- verse employment action (termination) is taken; perhaps Mary’s attorney could make a case that this was not a random test and therefore not a valid reason for the termination of employment. In the above scenario, the employer’s
supervisors need to have training on reasonable suspicion determinations and Mary should have been required (after documentation of the reasons) to take a reasonable suspicion drug test. Employ- ers need to be well counseled when considering implementing a random test- ing program, some state laws or testing in the public sector (government jobs) may limit or prohibit random (“suspicion- less”) testing of employees unless the job position warrants such an intrusion, such as in “safety sensitive” positions. A well written drug free workplace policy is critical to have a program that will withstand a legal challenge. In Department of Transportation
(DOT) regulated industries, random testing is a requirement of the program for covered employees but many employers are confused about who is a covered em- ployee. Tis varies among the many DOT
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agencies; the chart found in this article shows the DOT agencies with the covered employees, required random rates, and reference to the industry specific regula- tions. Oſten employers combine non covered employees in the DOT random testing pools and this is clearly an error. An example would be a company with several large trucks (over 26001 lbs) and a couple of small pickup trucks. Unless the small pickup truck drivers also drive the larger trucks they must not be in the DOT random testing program, and would need to be placed in a non-DOT pool. Frequency of random selections in the
DOT random testing program is oſten done incorrectly. Some employers have been known to do the random selections and testing once or twice a year. Tis makes it fairly easy for employees to figure out that they could use drugs and be undetected for periods of several months or more. DOT is very clear that random selections and testing should be per- formed at least quarterly. Some employers are selecting and testing more frequently. DOT thinks this is a good idea. My biggest pet peeve regarding both
employers and some TPAs who manage DOT random drug testing programs is the use of alternates. In doing a word search of all of the DOT regulations regarding the random drug testing programs I cannot find the word “alternate” or “alternates”. Yet many programs send out the random selection list with a list of alternates. An example: Bill is out sick for a day and someone from the alternate list is tested in his place. Tis is clearly not the intent and perhaps a violation of the DOT random drug testing program. So what should happen if a selected
employee is not available for testing? DOT has a publication that clearly an- swers this question, which is available on the Office of Drug & Alcohol Policy & Compliance’s (ODAPC) web site.
spring 2012
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