The majority of employers across the United States are NOT required to drug test and many state and local governments have statutes that limit or prohibit workplace testing, unless required by state or Federal regulations for certain jobs. Also, drug testing is NOT required under the Drug-Free Workplace Act of 1988. On the other hand, most private employers have the right to test for a wide variety of substances. It is very important that before designing a drug-testing program you familiarize yourself with the various state and Federal regulations that may apply to your organization.
Federal agencies conducting drug testing must follow standardized procedures established by the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services. These Mandatory Guidelines for Federal Workplace Drug Testing include having a Medical Review Officer (MRO) evaluate tests. They also identify the five substances (amphetamines, cannabinoids, cocaine, opiates and phencyclidine) tested for in Federal drug-testing programs and require the use of drug labs certified by SAMHSA.
While private employers are not required to follow SAMHSA’s guidelines, doing so will help them stay on safe legal ground. Court decisions have supported following the guidelines and testing for only those drugs identified in them and for which laboratories are certified. As a result, many employers choose to follow them.
The current law in the private sector generally permits non-union companies to require applicants and/or employees to take drug tests. All employers should consult with legal advisors to ensure that they comply with any applicable state or local laws and design their testing programs to withstand legal challenges. In unionized workforces, the implementation of testing programs must be negotiated. Even when testing is required by Federal regulations, certain aspects of how the policy is implemented must be agreed upon through collective bargaining.
More detailed information about drug testing is available from the Drug and Alcohol Testing Industry Association and the Substance Abuse Program Administrators Association.
Every drug-testing program should balance the needs of the employer and the rights of the employees. Every effort should be made to ensure the accuracy of testing and to protect everyone involved. Drug tests are more accurate and reliable if modeled after the Federal guidelines disseminated by the Substance Abuse and Mental Health Services Administration (SAMHSA). The Advisor’s drug-testing section provides more information about the procedures recommended in these guidelines.
Here are several steps that can be taken to safeguard the integrity of your testing program:
- Develop a written policy.
- Conduct all testing in accordance with SAMHSA’s guidelines.
- Carefully document a sample’s chain of custody.
- Split samples and retain a portion for confirmation testing.
- Confirm all tests by a test of more sophisticated technology.
- Have a Medical Review Officer (MRO) conduct a review of the positive results, which includes giving an employee who tested positive the opportunity to provide a legitimate medical explanation, such as a physician’s prescription, for the positive result.
- Keep all test results confidential.
- Refer employees who test positive to a substance abuse professional for assessment and referral.
- Train all supervisors and educate all employees on its implementation.
Drug-testing information is sensitive and confidential. Here are several steps that can help ensure this information is handled confidentially:
- Collect samples in a private and unobtrusive manner.
- Strictly limit access to drug-testing results to those who need the information to make safety and personnel decisions.
- Maintain drug-testing information, including test results, in files separate from the employee’s personnel files.
- Discuss positive test results and consequences with the employee in private.