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Employers and Employee Rights on Drug Testing in the Work Place

In: Business and Management

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EMPLOYERS AND EMPLOYEE RIGHTS ON DRUG TESTING IN THE WORK PLACE: Employer and employee have different rights and responsibilities in the organization. The right are provided for the productivity of the organization.

Drug and Alcohol Testing:
The use of drugs such as cocaine and alcohol has received widespread attention in recent years and many private employers now routinely test for drugs and alcohol use. However, the laws regulating drug testing are relatively new. The courts are still shaping them. At present, the Americans with Disabilities Act, some state laws, and court decisions affect an employer’s ability to use drug testing during the pre-employment period.

Generally, the law allows employers to require prospective employees to take drug tests if * The candidate knows that such testing is part of the screening process for prospective employees, * The employer has already offered the candidate the job, * All applicants for the same or similar positions are tested similarly, and * A state-certified laboratory administers the test.

Employers can avoid some potential problems by including an agreement to submit to such tests on their application form. Several federal laws and regulations require certain employers to conduct pre-employment drug and alcohol tests. Other issues that employers should consider when deciding whether to use drug and alcohol tests as screening devices are:

The duty to provide a safe workplace: State common law has long recognized the employer’s obligation to protect employees’ safety and health. The employer’s obligation clearly has application to using drug and alcohol tests in the workplace. However, whether this duty includes an affirmative obligation to conduct such testing on prospective employees is unclear.

Invasion of Privacy: State common law often recognizes a cause of action for invasion of privacy. Employers may violate employees' right to privacy if they intrude upon employees' private affairs, publicly disclose private facts about employees, or publicly place employees in a false light. If an employer establishes a reasonable drug-testing program for sound reasons, the employer can avoid charges of invasion of privacy. Employers should take care to protect the prospective employee’s rights by not publicizing that the candidate did not get the job as a result of a drug test.

Defamation: Defamation usually occurs when an individual makes a false statement about another person knowingly or with reckless disregard of its falsity. A charge of defamation can occur if an employer ignores a prospective employee’s claim of a false result. This is especially true if the employee subsequently tests negative and the employer ignores it.

Emotional Distress: Most jurisdictions recognize a cause of action for intentional infliction of emotional distress and negligent infliction of emotional distress. When employers, unintentionally, but negligently, administer pre-employment drug and alcohol tests, the law may hold them liable for causing severe emotional stress. As a result, employers should conduct pre-employment testing according to the common law or standards of care that statutes define. Such standards of care normally require that a positive test receive confirmation by an alternative testing technique.

Testing Techniques for Drug and Alcohol:

Blood Testing: The blood stream is a primary pathway for the distribution of drugs and alcohol in the human body. Blood testing actually measures the amount of the particular drug or alcohol substance in the individual's body. Because the levels of these substances in the blood dissipate within a matter of hours, rather than days or weeks as is the case.

Hair Testing: Testing of hair is another potential source for screening employees for drug use. This new technology has a unique advantage over other testing methodologies as it provides the longest retrospective record of drug intake. Approximately three inches of hair will reveal six months of drug use history. This technology is considered to be less invasive than other testing techniques.
Breath Testing: Breath is another specimen that may be tested in order to detect substance abuse problems of employees. Breath contains volatile substances such as alcohol, solvents and their metabohtes that reach the breath by diffusion from the blood in the lungs. An advantage of breath sampling is that it is a relatively non-invasive and inexpensive technology.

Saliva Testing: Saliva testing is another potential method of screening employees for drugs and alcohol. As with breath sampling and hair analysis, saliva sampling is only slightly invasive. The sample may be obtained by spitting on a blotter strip or dental sponge. Nevertheless, Saliva testing has not been used either forensically or in the workplace, as research on this technology is still in its early stages.

Urinalysis: Urine testing of employees and prospective employees is the most common type of workplace testing in Canada and the United States. Unlike blood testing, which actually measures the amount of a given drug in the body, urinalysis measures metaboutes, which are the inert, inactive by- products of the drug ingested by an individual.

Spray drug testing (Sweat): Another type of drug test consists of skin patch that measures drugs in sweat. Spray (sweat) drug test kits are non-invasive. It is a simple process to collect the required specimen, no bathroom is needed, no laboratory is required for analysis, and the tests themselves are difficult to manipulate and relatively tamper-resistant. The detection window is long and can detect recent drug use within several hours.
Types of Drugs Testing:
Pre-Employment Testing: Pre-employment testing is permissible under the ADA for detecting illegal drug use only. A test for alcohol is a medical examination and, accordingly, an offer for employment cannot be conditional on passing an alcohol test.
To conduct Pre-Employment Testing the employer must follow the legal rules about providing notice and following procedures intended to prevent discrimination and inaccurate samples. * The applicant knows that such testing will be part of the screening process for new employees. * The employer has already offered the applicant the job, contingent on passing a drug test. * All applicants for the same job are tested similarly. * The tests are administered by a state-certified laboratory.
Today, most companies that intend to conduct drug testing on job candidates include in their job applications an agreement to submit to such testing. If, in the process of applying for a job, you are asked to agree to drug testing, you have little choice but to agree to the test or drop out as an applicant.
Post-Employment/Post Incident: Employers may reserve the right to test employees involved following an accident or workplace safety violation. Businesses that require safety-sensitive positions should consider conducting this type of drug testing. There are some legal constraints on testing employees for drug usage in most private employment jobs. In some states, companies cannot conduct blanket drug tests of all employees or random drug tests; the testing must be focused on an individual, either because the employer has a good reason to believe that person is using drugs or because the person's job carries a high risk of injury or damage if performed by someone who is under the influence.
Courts have generally ruled that companies may test employees after an accident that could have been caused by drug use or an incident in which the employee appeared to be impaired. For example, a bulldozer operator who swerved the machine illogically through a field crowded with workers could be the legal target of drug testing. And a legal secretary found slumped at her desk, unable to respond cogently to questions asked of her, was also considered fair game for a drug test.
Challenging Drug Tests:
An employee can always refuse to take a workplace drug test. But, if he are fired because of refusal, he may have little recourse. (In fact, in some states, he might be denied unemployment benefits if he was fired for refusing to take a drug test.) His employer needs only to show that there was good reason to believe that he was a safety hazard on the job or that he seemed unable to perform the work required. He would be placed in the difficult position of proving that his employer knew no such thing. He may, however, be able to win his job back if he can show that he was treated differently from other employees in the same position.

If he has been given a drug test and unfairly suspended or demoted because of it, his best bet may be to argue that the testers did not meet with the strict requirements for form and procedure set out in his state law. And note that employers are free to add safeguards to protect against specimen tampering requiring those taking the test to remove their own clothing and don hospital gowns, or providing a test monitor who checks the temperature of the urine and adds dye to toilet water, as examples. However, a modicum of discretion is required; while most courts have found it reasonable to have a monitor listen as a urine test is administered, a number have found it an unreasonable invasion of privacy for the monitor to watch.
When Is a Suspicion Reasonable for drug and alcohol test?
Many country law allow an employer to test for drugs based on a reasonable suspicion that an employee is under the influence. What suspicion is reasonable and what is not is in the eye of the beholder, which makes it a slippery standard indeed. * Direct observation of drug use or its physical symptoms, including slurred speech, agitated or lethargic demeanour, uncoordinated movement, and inappropriate responses to questions * Abnormal conduct or erratic behaviour while at work, or significant deterioration in work performance * A report of drug use provided by a reliable and credible source that has been independently corroborated * Evidence that the employee has tampered with current drug test results * Information that the employee has caused or contributed to an accident at work, or * Evidence that the employee has used, possessed, sold, solicited, or transferred drugs while working or at work.
Legal prohibition of drug testing in work place:
It is not fair to legally prohibiting drug testing in work place because in today’s world large portion of the population are addicted to some kind of drugs usage as mentioned above the usage of drugs can diminish the efficiency of the employee, the companies cannot on-board a employee without having the surety that he/she is an efficient worker. And more over any accidents can cause loss to the employees as well as to the company in terms of safety and security issues. So, it is important to have drug testing in work place.

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