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Beyond discrimination issues, there is also the argument that testing was not properly performed.

removes the employer from the selection process. Moreover, it helps to negate the claim an employee may have that they were discriminated against during the selec- tion process. An outside contractor has no reason to invalidate the selection process. Tey simply run a generator and do the testing. Tere is no vested interest. When the question comes up in the court of law, the employer can simply and honestly state that they have no control over who was and who was not selected, effectively removing their liability for selection based discrimi- nation or unfair treatment. Beyond discrimination issues, there

is also the argument that testing was not properly performed. Tere are many reasons that this argument could with- stand court proceedings. Questions that fuel this issue include: Did the employer provide adequate training? How oſten was the tester recertified? When was the last test performed by them completed? Oſten employers may provide a one-time training for those performing tests. What happens when that employee quits or gets promot- ed? Does the employer provide additional training by a certified trainer? Furthermore, if business has a low rate of turnover, the person in charge of drug testing may forget or make errors in the testing procedures. Outside drug testing businesses have

experience and protocols that dictates the steps that are to be taken during a drug test. Aſter all, they are professionals. In court proceedings when what steps that were taken is in question, using profes- sional collectors takes out any ambiguity. A person from a testing facility is more likely to be able to quote the exact steps they took versus an employer representa- tive that may only do one or two drug tests a year and cannot quote the steps they took when performing the test. Tey may also compromise the chain of custody by improper handling of the specimen. Many court cases have been lost based on improper chain of custody handling.

38 datia focus

Being able to quote the procedures

helps to establish the validity of testing. Additionally, the drug testing kits pur- chased over the Internet oſten times do not come with MRO services. MRO refers to a “Medical Review Officer”, an expert in toxicology and the effects of drugs on the human system. Te MRO has a vital role in the overall

drug testing process. Te MRO helps protect both the rights of the employee being tested and the employer requiring the testing. An MRO “review” includes the interpre-

tation of urinalysis test results reported by the testing lab. Tis is to ensure a scientifi- cally valid result. Te MRO atempts to determine whether a legitimate medical explanation could account for any “con- firmed positive” result reported by the laboratory. Tis duty is fulfilled through telephone or in-person interview with the specimen donor. Te MRO gives the donor an opportunity—through their doctor or pharmacist—to provide evidence of legally prescribed drug use that may have caused the lab-based positive result. When the MRO can determine that a legitimate medical explanation exists, he or she will then “overturn” the results reported by the lab. Te MRO will report the “final” result to the donor’s employer as “negative.”5 Being able to stand in a court of law with results that are double verified certainly will hold a higher validity than a test that is bought cheaply from the Internet with no MRO review.

Employer Relationship Besides the validity of testing, one of the important issues for employers to consider when deciding between in-house or outsourced testing is the employee-em- ployer relationship. Drug testing is a very sensitive subject for many and may even be embarrassing. In-house testing can create a barrier that makes the employee feel as if they are superior to the drug test

summer 2013

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