or failing to atempt to provide a specimen without an adequate medical explana- tion; adulteration or substitution of a specimen, or atempting 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 completed; failing or refus- ing to submit to a second 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 permited, employers also should be aware of recent Occupational Safety and Health Administration (OSHA) guidance stating that there should be a “reasonable possibility” that drugs or alcohol could have caused or contrib- uted to the accident. Testing should not be conducted in circumstances where drugs or alcohol could not have been a factor in the accident, for ex- ample, insect stings, animal bites, aller- gic reactions, repetitive stress injuries, injuries resulting from pre-existing illnesses (such as diabetes, epilepsy, etc.), slips and falls on ice, among other things. Even before OSHA’s re- cent guidance, I warned employers not to conduct post-accident testing aſter every trivial injury or illness, because it could appear discriminatory or re- taliatory (like workers’ compensation retaliation or disability discrimina- tion). Te beter practice is to include language (unless different language is required or permited by appli- cable state or local law) that (1) the employee’s acts or omissions caused or contributed to the accident; (2) there is a reasonable possibility that drugs or alcohol could have caused or contributed to the accident; and, (3)
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there was a serious injury requiring im- mediate medical atention 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 Princi- pal 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 pertinent 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 employers in litiga- tion where drug and alcohol test results are at issue, and frequently conducts “reason- able suspicion” training for employers in con- nection with their substance abuse policies. Ms. Russo also counsels employers on leave and disability management issues arising when employees seek leave for substance abuse rehabilitation.
Ms. Russo is the editor and a contributor to Jackson Lewis’s Drug and Alcohol Testing Law Advisor Blog,
www.drugtestlawadvisor.com, a site addressing developments in workplace drug and alcohol testing. She is also a member of the Drug And Alcohol Testing Industry Association as well as the Suffolk County Bar Association’s Labor and Employment Committee.
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Many workplace drug and alcohol testing policies do not define “refusing to test,” and provide no disciplinary consequences for it. This is a serious mistake because employees routinely engage in evasive behaviors to avoid a drug or alcohol test. Such behaviors may constitute “refusing to test” and should lead to termination.
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