Sunday, November 27, 2022

On-Site Drug Testing: Remember to Support Need, Confidentiality

We’ve been bringing our employees back into the office, and pursuant to our “reasonable suspicion” drug testing, would like to conduct in-house drug testing. Can we do this?

The short answer is yes — employers can conduct drug tests on site. There are a few issues to be aware of, however.

Written Policy

First, you must have a clear, written policy that upon reasonable suspicion of illegal (or legal) drug usage, the company will be conducting drug testing.

Supervisors need to be trained on the signs and symptoms of usage, and to know what to do when they observe these signs. The mere observation of someone “acting funny” doesn’t support the need for testing. Even researching signs on the internet can help your people learn what to look for.

One of the positive aspects of in-house testing is that it is far less expensive than sending the employee to a lab. Indeed, an employee suspected of being under the influence should not be put in their car to drive to a lab; therefore, there is a need for a second employee to drive the allegedly impaired employee to the lab — increasing the cost of the test.

Testing Considerations

Second, with in-house testing, the test can be conducted at any time. Often, by the time it is determined that a test is needed, the lab is closed. Many drugs, including alcohol, quickly exit the system and wouldn’t be detected the next day. With in-house capability, testing can be done immediately, or even in the middle of the night, for a warehouse setting, for example.

Nevertheless, if an employee tests positive for drugs, it is wise to send them for a second, confirming test at a professional lab. If the employee is terminated due to the test results, it is easier to challenge an in-house test versus a professional lab.

A professional lab will test the sample with techniques that are highly accurate and can help rule out any false positives that the employer might have gotten.

Confidentiality

Lastly, it is important to keep the results confidential. Said results are protected under Health Insurance Portability and Accountability Act (HIPAA) privacy laws, and should be kept in a separate, confidential medical file.


Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Staff Contact: Dana Leisinger

Dana Leisinger
Dana Leisinger
Dana Leisinger joined the CalChamber in 2000 and currently serves as an HR adviser. She has advised employers on matters such as employment law, wrongful termination, discrimination, sexual harassment and wage and hour issues. She also has conducted seminars and training and guided employers through various levels of governmental investigations. Leisinger holds a J.D. from the McGeorge School of Law, University of the Pacific.

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