In yesterday’s Advisor, Dr. W. Smith Chandler offered tips on drug testing. Today, he’ll show how to prevent liability when testing, and we’ll introduce a unique all-in-one HR problem solver that helps with drug testing and most every other HR challenge.
Chandler, an SPHR and physician who is board-certified in occupational medicine, has helped many employers develop substance abuse programs. His comments came during a recent audio conference sponsored by BLR®.
What to Do to Prevent Liability
Chandler urges HR managers to pay particular attention to the following problem areas:
Collector error. Collector error is the weak link in a chain. It is a common and easy target for accusations. So in your policies and practices, you must show concern and due diligence about collections. Follow procedures carefully, every time. Train and certify collectors. Or if you contract these services, make the company promise to use trained and certified collectors.
Confidentiality. It is very important that test results be shared only on a need-to-know basis. Chandler points out that when you test current employees, it is very hard to keep the workforce from finding out that Joe failed his test.
Discussing results. Don’t talk to employees about their test results, says Chandler. No good can come from it. He knows one attorney who took on a lawsuit just because HR agreed that test results didn’t make sense. Say, "We have hired an expert to evaluate the test results, and if you have more questions, he or she would be happy to spend some more time."
Retests. Don’t allow retests. People always ask for retests, says Chandler, but you shouldn’t go there. Allowing a retest admits that the first test might have been wrong, and if you aren’t confident in your testing, you shouldn’t test. Remember, in an excellent program, false accusation is impossible.
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How to Structure a Successful Program
Educate employees about your program. The primary concern that nonabusers have is that they will be wrongly accused. You need to reassure them that that can’t happen.
Explain why the testing program is important. Some employees resent being told what the program consists of, but not how it is important to the company.
Get your EAP in place before testing employees. It’s important to have this option available to employees, says Chandler.
Get expert advice. An experienced MRO in partnership with an experienced HR officer can meet organizational needs without liability. Without both, you probably need expert help to structure your program.
Go with the DOT lookalike program. If your program is patterned after principles established by DOT, even if it does not follow every aspect specified in DOT’s program, you will be in safe territory.
Essentials for Substance Abuse Testing
Chandler suggests the following:
- Do test, but only carefully and correctly.
- Get expert advice.
- Follow all DOT donor protection guidelines.
- Use certified labs and MROs.
- Use experienced collectors.
Finally, he says, remember this: If you don’t test, you’ll be a magnet for substance abusers.
How about your company? Is it a magnet for substance abusers? Of course, drug testing is just one of what, a couple of dozen recurring HR challenges? What about new COBRA rules, FMLA intermittent leave, overtime, ADA accommodation, and sexual harassment, to name just a few?
You need a go-to resource, and our editors recommend the “everything HR in one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:
Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.
E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.
Solicitation. In line with our general nonsolicitation policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.
We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)
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