According to the latest Quest Diagnostics Drug Testing Index™ insights, increased use of illicit drugs has driven workforce drug testing positivity to the highest rate in 12 years.1
W
orkplace drug testing has seen rapid growth over the last few decades. Some employers
have the facilities to provide drug testing services for their own employees, while others contract with drug and alcohol testing services. Positive drug and alcohol test results can have a significant negative impact on the employee, and there are risk considerations for the employer as well. Likewise, drug and alcohol testing organizations have their own risk exposures and legal liability. Given the range of potential loss
exposures, it is important that the drug testing organization has a comprehensive enterprise risk management (ERM) program in place. An ERM approach to an organization’s
business-decision-making process can help identify and effectively manage interrelated risks across all of the business’s domains that may threaten the successful achievement of an organization’s strategic goals and business objectives. Tis article will present some examples
of potential risk management strategies across several domains of risk for drug testing services to consider. It is beyond the scope of this article to give exhaustive information on federal, state, or local requirements, or how to perform specific aspects of drug testing services.
Potential Risk
Management Strategies for Key Aspects of a Drug Testing Operation DOMAIN: LEGAL/REGULATORY RISKS Engage legal counsel to assist with any applicable federal, state, and
local laws and regulations for drug testing services. • Knowledge of and compliance with the most recent Substance Abuse and Mental Health Services Administration (SAMHSA) and Department of Health and Human Services (HHS) mandatory guidelines for Federal Workplace Drug Testing Programs (effective October 1, 2017)2
are important. HHS establishes
the scientific and technical guidelines for federal workplace drug testing programs and the standards for certified labs that conduct urine drug testing for federal agencies. As another example, there are requirements for Department of Transportation (DOT) drug testing as well. Although a drug testing facility may not be required to adhere to these federal guidelines, which may not have the effect of law, they can be helpful in designing an organization’s own policies and procedures.
• Compliance with applicable state and local laws and regulations, such as required laboratory certifications, technical requirements for writen notices and confirmatory retest procedures, and limits on the testing methods or mandates on how and when drug testing by employers can be done.
• Compliance with applicable federal and state laws for information privacy and security, drug testing, and donor consent regarding release of test results and records and any research activities.
• Contract Terms: Some possible terms for consideration may include: • Indemnify and hold harmless language in contracts with employers regarding
their employment decisions based on drug test results.
• Loss of laboratory certification and/or accreditation.
• Right to terminate for no cause. • Insurance coverage requirements. • Notification of any information privacy or data security breach.
• Notification of any breach in meeting and maintaining testing standards.
DOMAIN: FINANCIAL RISK Perform a risk control and risk financing review. • Engage insurance brokers and carriers to assist in reviewing risk and liability exposures, as well as the various types of insurance coverages that will be needed to adequately treat the risk exposures for the enterprise.
DOMAIN: LEGAL/REGULATORY Maintain required drug testing laboratory certification and/or accreditation. • Determine whether a good risk- management strategy for the organization is to obtain and maintain drug testing program certification and/ or accreditation, even if not required for the drug testing services that will be provided. For federal employee testing, there is the HHS National Laboratory Certification Program (NLCP), and for accreditation there is the College of American Pathologists (CAP) Forensic Urine Drug Testing (FUDT) program for nonfederal employees. Both are considered a standard of care for drug testing services.
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