Maintaining a drug free workforce takes commitment, policies, program management, and awareness of local, state, and federal laws. There is no federal law that prohibits random drug testing. In fact, some laws, such as the Federal Motor Carrier Act, may require random drug testing for drivers of commercial vehicles. There are, however, many states where random drug testing may be an invasion of privacy under tort principles. In some states, case law provides that random drug testing may only be conducted where required by statute or where a person works in a “safety-sensitive” position.
Alcohol and drug use among employees and their family members can be an expensive problem for business and industry and this is why we at CleanFleet recommend a clear and thorough Drug and Alcohol Policy and program management. Otherwise, there are many potential legal, financial, and productivity problems that could arise.
Congress passed a law in 1988 that required the maintenance of a “drug-free workplace” by any company that held significant government contracts or grants, and another federal law, passed in 1991, required drug and alcohol testing of “safety-sensitive” employees in private transportation companies. By 1996, a survey from the American Management Association found that more than 80 percent of its member companies had some form of drug testing, and two-thirds tested all new hires. Over a span of less than 20 years, employee drug testing had become the norm. According to a recent survey of almost 70,000 working adults from across the United States, 48.2 percent said that their employers performed drug screenings of some kind.
The most common risk that employers face is discrimination. One such example is how individuals are selected in a random drug testing program. If an employee feels that they are being singled out too frequently for drug testing, they may make a claim of discrimination. Therefore, employers must develop a truly random selection process to help mitigate the risk of discrimination claims. Common drug testing discrimination:
Many employers use a computer program to randomize the selection of employees who will be tested. Others use less technologically sophisticated methods of selecting test subjects. Employers need to be careful with whatever method they utilize anytime they are setting up the testing pool selection process so as not to be accused of manipulating the process to target certain individuals.
UPS had to pay $450,000 due to the State Only Allowing Random Testing and not Post-Accident
In the case of Michael Tomick vs. UPS in 2010, over a previous 12 months timeframe, Mr. Tomick (plaintiff) suffered from back-pain during the job. The supervisor was upset and required Mr. Tomick, under threat of determination, to submit to a fitness for duty “post-accident” test. Mr. Tomick refused to take the drug test, and eventually, was terminated.
Even though Mr. Tomick did not take the drug test, the jury found that UPS required the plaintiff to directly or indirectly submit to a urinalysis drug test on December 2, 2004, and, further, that UPS did not have a reasonable suspicion to require the plaintiff to submit to a urinalysis drug test (Connecticut’s law that only allows “Reasonable-Suspicion” testing and not post-accident testing).
In the end, the jury awarded $500,000 in damages: UPS $450,000 compensatory damages and the Supervisor $50,000 punitive damages.
DOT Falsifying Records
Remember, the DOT requires employers to conduct a pre-employment drug test, obtain a three-year drug and alcohol violation history, and monitor employees on an on-going basis. Motor carriers who fail to conduct this screening could be subject to fines. While a variety of factors are considered when fines are assessed, record-keeping fines begin at $500 per day and the fine for knowingly falsifying records is $5,000. However, monetary damages can extend far beyond those assessed by the FMCSA.
In May 2014, a trucking company’s owners were charged with, amongst other things, concealing driver's positive drug test. One of the many counts of Indictments charged Rose Marie Diffenderfer with false statements or entries for willfully concealing and covering up a positive drug test result for one the company's truck drivers. Each count of the Indictment carries a maximum statutory penalty of 5 years in prison and a fine of up to $250,000, according to a DOT report.
For more on DOT Drug Testing Regulations, Click Here.
CleanFleet Drug and Alcohol Testing Program Management services are designed to assist our clients increase profitability through testing. There are many benefits to using a TPA like CleanFleet:
CleanFleet can work with companies and agencies with existing programs to seamlessly bring program management, compliance, and costs under control. We can also help set-up a new policy and testing program customized for your needs. Call the experts today at 503-479-6082.
Background Screening: Reduce these issues and costs by screening before you hire. Our background screening is a simple and inexpensive tool to help give you a 360 degree view of your potential employee. Screening the criminal history and credentials of an applicant is the best way to keep your company from hiring a criminal, registered sex offender, an exaggerator of credentials, or just a plain liar, reducing your company’s risk and liability.
Drug and Alcohol Testing Programs: Keep your accident rate down by using one of our customized CleanForce programs where we can help your organization establish and manage a full-service drug and alcohol screening program designed to each individual employer and budget. A variety of screening methods can be used including hair, oral fluid, and urine. The breadth of the test is determined by you. SAMHSA Certified Labs are used to ensure the highest accuracy in every test.