APPENDIX GG
DRUG TESTING POLICIES

To determine whether drug testing is needed, an employer should document the numbers of sensitive/safety-critical employees and whether drug testing is common in similar non-profit organizations. An employer should identify the particular aspects of the organization's activities that are or may be substantially and adversely affected by drug use.   Employers are accorded particularly wide latitude in having drug and alcohol testing policies if health or safety is at issue.  Since drug and alcohol use is linked to increased hazards on the job, employers will have more freedom to discipline employees if the affected jobs involve safety risks to co-workers or the public, such as jobs related to child or senior care, public safety (fire, police), transportation, or jobs involving machinery.  Other aspects of an employer's business that may be affected by drug use include, an adverse effect on employee health and employer health costs, loss of confidential information, drug-related employee theft, a negative effect on nonprofit's image due to public or customer perception of drug use by nonprofit employees, vulnerability of clients, duty to provide safe workplace and/or the threat of a negligent hiring lawsuit.

While the determination of who to test will vary from employer to employer, several options include testing employees who hold safety sensitive positions only, employees with important fiduciary responsibilities, employees with high visibility/public image or all employees.  All employees holding similar classifications or performing similar work need to be treated similarly. An employer should also determine not only which job categories will be subject to drug and alcohol testing, but additionally, the circumstances under which those employees will be tested.  Such circumstances may include applicants, employee promotions, fitness for duty examinations, periodic physical examinations and/or previously identified drug users. Random or unannounced testing should not be utilized unless the employees to be tested perform functions that would result in immediate and serious personal injury or property damage if impaired by drug or alcohol use.

In selecting a laboratory to conduct drug tests, an employer may wish to employ a laboratory accredited by the National Laboratory Accreditation Program supervised by National Institute on Drug Abuse.  The laboratory should have quality-control systems and standard operating procedures in place, established conditions for acceptance or rejection of samples, appropriate chain of custody procedures, specimen-storage procedures and duration, confidentiality and record release procedures, record-keeping standards, appropriate licensure, if applicable, staff qualifications for forensic toxicological testing and laboratory participation in recognized blind testing program.

It is important for nonprofit organizations to develop a standard response to a positive test result and that the response bear some relationship to the stated purpose of the testing.  Although termination is an obvious response to a positive drug test result, other options include providing a warning and offering a second chance to the employee, offering the employee detoxification/treatment options and periodically monitoring identified drug users.  Additionally, the employer must specify the substances to be tested, as well as, establish the levels of each drug identified in a test result to be reported as positive.  Employers should consider use of NIDA and Department of Health and Human Services standards as appropriate guidelines for initial and confirmatory tests.  It is also important to minimize the possibility of identifying off-hour drug use. 

Employers should establish strict confidentiality standards for reporting of results by the laboratory and company personnel to protect the privacy of the employee as best as possible.  Employers must also provide procedures for an employee to challenge or explain results of a drug test.  An employee should list drugs and medications taken recently prior to  undergoing the drug test as there may be an innocent explanation for positive results for certain drugs.  Laboratories should also preserve sample portions and test results.  An employer should not allow an employee to choose the laboratory performing the drug test unless this is required by state law. 

Should an individual employee refuse to undergo a drug test, the employer may transfer the employee to a less sensitive job, demote the employee, terminate the employee and/or provide the employee with the option to undergo drug counseling.  An employer should use care when choosing to terminate an employee for refusing to submit to a drug test.  If the above guidelines are followed, the drug test should not violate any privacy right.  However, if a court decides that there was no compelling business interest to justify testing, then a termination could violate public policy and result in substantial tort liability. 

Additionally, special policies related to drug testing include: the formulation of rules addressing the use or abuse of prescription drugs while on the job if safety or performance is affected; rules dealing specifically with sanctioned and non-sanctioned alcohol use; prescribed specimen storage/transportation; and specification of methods for detecting adulteration or switched samples. 

Implementing a drug-testing policy properly takes ongoing effort and vigilance.  Employers must inform all affected employees in writing of policy requirements and disciplinary consequences of drug and/or alcohol use and the refusal to undergo testing.  An employer should provide clear notice and, where appropriate, a grace period before implementation.  Employment application forms should be modified to inform applicants of the testing program and request consent.  Further, all supervisors and collection personnel must receive initial training and periodic refreshers.  A system also should be developed to monitor company and laboratory adherence to proper drug-testing procedures and policies.  Some employers appoint a standing committee of employees, management and/or legal counsel to monitor the system.  Finally, any monitoring system should include periodic re-evaluation of the employer's need for the program and the various test strategies.