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Drug testing is a complicated process, scientifically and legally. From the collection of a sample to the reporting of a result, there are many steps that must be done perfectly every time or providers and end users expose themselves to legal liability. Because we live in a highly litigious society, legal defensibility should be a top priority for both sellers and buyers of drug testing.
What is Legal Defensibility?
Legal defensibility can be defined as a company’s strategy for reducing exposure to legal risk. It does not necessarily mean avoiding legal challenges to a drug test program or test result, but it does mean being in the strongest position possible to legally defend your program and each individual test result. For this reason, and others, employers are well advised to do their homework before deciding which drug testing method to use.
Federal Impact on Legal Defensibility
There are only two drug testing methods that have been officially endorsed by the federal government: lab-based urine and lab-based oral fluid. For 30-plus years, urine testing was the only method permitted for federal government-mandated drug testing such as the drug and alcohol testing regulations of the U.S. Department of Transportation (DOT). On October 25, 2019, the Substance Abuse and Mental Health Services Administration (SAMHSA) issued final guidelines for lab-based oral fluid drug testing.¹ On February 28, 2022, DOT issued a Notice of Proposed Rulemaking (NPRM) for lab-based oral fluid testing, adding yet another layer of credibility to oral fluid testing.²
That’s it! Those are the only two testing methods that offer the legal defensibility associated with federal guidelines. Other testing methods besides urine and oral fluid may have merit, especially hair testing, but as of now they do not offer testing procedures issued by the federal government. [Note: SAMHSA issued an NPRM for hair testing in 2020.³]
State Laws and Legal Defensibility
Compliance with state laws that affect workplace drug testing is also a critical element of strengthening the legal defensibility of a drug testing program. These include drug testing-specific laws, workers’ and unemployment compensation regulations, and legal marijuana laws. Some of these laws have very narrow guidelines for what testing methods are permitted and what can be done with positive test results. It is not uncommon for such laws to defer to the SAMHSA guidelines and require employers to employ those procedures, including which specimen may be used and what kind of laboratory can be employed.
Remember, as well, that multi-state employers must comply with all applicable state laws. This means that a company headquartered in Texas with operations in several other states, must have a policy that reflects the laws and regulations for each state where it has employees who live and work. A base policy that reflects Texas requirements, for instance, with addendums for each additional state with legal requirements that differ from Texas is the most effective way to comply from a policy perspective.
What if a Drug Test Result is Challenged?
If your drug testing program is ever challenged or if an employee or applicant tries to contest the result of a drug test result, the use of the federal drug testing guidelines will provide legal cover. As an employer you want to be able to say that you observe federally approved drug testing procedures, that you consistently follow those procedures with every single drug test, and that you never deviate from those guidelines. The federal guidelines not only provide employers with legal defensibility, but they also offer those being tested the assurance that their urine or oral fluid sample (and someday hair) traveled a secure path from collection to result.
Following are some of the key components of the federal guidelines that, when faithfully observed, strengthen the legal defensibility of a company’s drug testing program:
- Collection procedures utilizing strict chain-of-custody protocols
- Custody and Control Forms (CCFs) that help document the journey of a specimen
- Split specimen protocols to protect against claims of laboratory errors
- Certified laboratories to ensure the highest testing standards
- Federally approved cut-off levels that establish consistency from test to test
- Lab confirmation utilizing GC/MS or an equivalent technology
- Medical Review Officer (MRO) verification of confirmed results
- Supervisor training to ensure management understands how to correctly refer someone for a drug test, protect the confidentiality of test results, and ensure the dignity of the entire testing process
Regardless of the testing method being used (urine, oral fluid, or hair), ensure that your program, to the extent possible, includes the above list of procedures to strengthen the legal defensibility of your program.
Marijuana and Legal Defensibility
The legalization of marijuana has put the employer community in virtually every industry on alert. Why? Because some marijuana laws place conditions on workplace drug testing. These conditions include an emphasis on recent-use detection and restrictions on what employers can do with a positive test for marijuana. This trend has caused some employers to question whether it is still legal to test for marijuana or even worth the trouble if positive test results may not be considered in making employment-related decisions.
The good news is that testing for marijuana is legal in virtually all 50 states, with New York being the sole exception (though some exceptions exist in New York). However, the marijuana situation is all the more reason for employers to rely on proven drug testing methods with years of history and procedural guidelines from the federal government. The fact that SAMHSA has now issued guidelines for lab-based oral fluid testing, which is the only federally approved recent-use drug testing method and is in the process of doing the same for hair testing, which is ideal for long-term drug use detection, should assure employers that drug testing is still a reliable way, when done right, to address workplace substance abuse and its devastating impact on safety and productivity.
The 3 C’s of Legal Defensibility
Following are three things every employer should do to ensure the highest level of legal defensibility when conducting drug testing:
- Compliance—First and foremost, when it comes to legal defensibility you must comply with the laws and regulations that apply to your company. Every state has its own unique standards for drug testing; no two states are alike in this regard. But, as a multi-state employer you must comply with the legal requirements of each state where you have employees who work and live. This may sound complicated, but it doesn’t have to be. Research the laws and regulations in each applicable state and base your drug testing program on those legal requirements.
- Comprehensiveness—Ensure that your drug testing policy includes everything possible about your program. For instance, explain what the policy requires, what would be considered a violation of the policy, and the possible consequences for policy violations. Further, describe how your drug testing program works, who is covered by it, when testing may occur, and how testing will be conducted. Describe collection procedures and what is expected of applicants and employees. More is better than less when it comes to your written policy.
- Consistency—Whatever you say in your policy, do it that way every time with every test. Don’t make exceptions for management or your top salesperson. Treat everyone in your program the same and conduct drug tests the same every time. Don’t test for marijuana one way, for example, and all other drugs another way. Don’t offer second-chance agreements to some workers and not others. If a state law appears to allow exceptions and you want to take advantage of it, explain it in your policy so it is clear to all supervisors and employees. Be consistent.
It is unlikely that the federal government will approve any other drug testing methods besides urine, oral fluid, and hair in the foreseeable future. For now, especially under the present circumstances brought about by the legalization of marijuana and the legalization movement’s focus on limiting employers’ right to conduct drug testing, employers should make legal defensibility a top priority when choosing a drug testing method.
¹ Mandatory Guidelines for Federal Workplace Drug Testing Programs— Oral/Fluid. 84 Fed. Reg. 57554. (October 25, 2019) (to be codified at 42 CFR Chapter I).
² Procedures for Transportation Workplace Drug and Alcohol Testing Programs: Addition of Oral Fluid Specimen Testing for Drugs. Feb. 28, 2022.
³ Mandatory Guidelines for Federal Workplace Drug Testing Programs. 85 Fed. Reg. 56108. (proposed September 20, 2020) (to be codified 42 CFR Chapter I).
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