Non-DOT Drug & Alcohol Testing Tool Kit

Non-DOT Drug & Alcohol Testing Tool Kit

This material is provided for general information and is not legal advice. Consult your own attorney for advice concerning specific situations ?California Employer Association All Rights Reserved

Table of Contents

The Reasonable Suspicion Drug Testing Process .............................................................................. 3 If You Decide to Test ................................................................................................................................. 4

Consent to Testing Document ....................................................................................................... 4 Suspicion of Employee Drug Use .......................................................................................................... 5 Testing Considerations ............................................................................................................................ 6 Medical Information and Reasonable Accommodation Considerations...................................... 6 Drug or Alcohol Rehabilitation Protection .......................................................................................... 8 Overview of federal and State Drug Testing Laws............................................................................. 8 Who Can Be Tested and When .............................................................................................................. 8 Reasonable Suspicion Testing.............................................................................................................. 10 Before you Begin Testing ...................................................................................................................... 10

Elements of a good Policy and Procedure include ...................................................................... 12 Management Drug Testing Policy & Procedures ..................................................................... 12

Drug Testing Facilities ............................................................................................................................ 12 Confidentiality of Drug Testing Information ..................................................................................... 13

This Drug-Free Workplace Toolkit is designed to provide you information to help you develop and sustain a successful drug-free workplace program. Use the Drug-Free Workplace Toolkit to support workplace health and safety by creating and maintaining your drug-free workplace policy and program.

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The Reasonable Suspicion Drug Testing Process

It is advisable, if possible, to have two supervisors or managers conduct a joint Reasonable Suspicion Investigation and independently determine if they believe reasonable suspicion exists. This helps prevent claims that a manager has some personal animosity against the employee that affected their decision to test.

Step 1

Complete the Reasonable Suspicion Checklist. Reasonable Suspicion Checklist. This is your document containing your observations which may constitute reasonable suspicion. If possible, have two members of management complete the checklist. It would then be less likely the employee to claim that the one manager had it out for the employee to begin with and fabricated the observations in order to test the employee.

Step 2

Meet with the Employee. This is your further investigation process. Meeting with the employee and having interaction with him/her gives you the opportunity to further observe the employee for other possible symptoms of impairment other than what you already know. Ask the employee if there a reasonable explanation for the employee's behavior or your observations? You should explain your observations to the employee and give them the opportunity to respond. For example, let's say you observed alcohol on the breath of an employee but the employee states that he drank a non-alcoholic beer before coming to work. Non-alcoholic beers do taste and smell like their alcoholic counterparts so the employee may have a valid explanation. If the smell of alcohol on the breath is your only observation you probably will not have "reasonable" suspicion and should not test.

Step 3

Analyze all Items Presented. If employee's explanation does not explain your observations and the employee is exhibiting multiple suspect behaviors then you probably will have reasonable suspicion. However, if the employee also exhibits bloodshot eyes, can't maintain balance, or their speech is slurred, you probably would have reasonable suspicion and could require the employee to submit to a drug test. Remember, these issues are not first decided by any neutral government fact finding agency such as the DFEH or EEOC unless it involves discrimination, if you are challenged on your drug testing policy or procedures, the issue goes to the California court system for adjudication so employers should always be thinking: What do you think a jury of strangers would think?

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If You Decide to Test Step 1

Inform the employee know that he or she is being directed under company policy to submit to a drug test for reasonable suspicion.

Explain what the process will entail

? How will they Escorted and/or transported to facility ? How the test will be conducted, (i.e. urine sample, hair follicle). ? What the employee's status will be pending the results. As most testing procedures

do not provide you with instant results, you should inform the employee what his or her status is, i.e. suspended without pay or suspended with pay, approximate time for decision, employee notification of results, etc. ? Explain what will happen if they refuse the drug test

Step 2

Ask the Employee to consent to the Drug Test in writing. Submitting to a proper drug test is considered an employer's requirement for continued employment and, as such, an employee has a right to decide not to continue employment and refuse a drug test. If the employee refuses to test its a good idea to remind the employee again what will happen if they refuse and to consider that before he/she consents or declines.

Consent to Testing Document: Employee Consent to Testing

Step 3

Transport or Escort Employee to Testing Facility. NEVER require an employee to submit to any post-accident or reasonable suspicion test and have them drive themselves! Remember, the employee is on-the-clock and the company is liable for their actions. Just think of the liability you could incur if an employee got into an automobile accident on the way to the testing facility and it was shown you suspected the employee of being impaired but put him behind the wheel anyway!

Step 4

Assist with arrangements for the employee to be transported and/or escorted home following testing. Even though the employee can officially be off-the-clock after he or she has been excused from the testing facility and free to leave from the company, you can't just drop them off at the testing facility and leave them stranded without ensuring they have a way to get home. Explore possibilities of them calling a friend or relative, or if they can afford to take a bus, taxi, or rideshare. You may have to drive them home if there is no

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other alternative - you can't just leave them. The employee should remain on-the-clock until they are dismissed from the testing facility.

Department of Transportation Regulated Employers

It is important that an employer distinguishes between federal Department of Transportation (DOT) and non-DOT drug and alcohol testing, since it is crucial for DOT tests to be completely separate from non-DOT tests in all respects. This is especially important for compliance with federally mandated random DOT drug and alcohol testing rates for employers. There are also specifically mandated Custody and Control Forms for all DOT drug and alcohol specimen collections that must be used, and which are unique from nonDOT collection forms. Further, state law does not apply to DOT drug and alcohol tests. This tool kit does not contain DOT information or procedures.

Suspicion of Employee Drug Use

If a company suspects an employee is under the influence or otherwise impaired on the job by alcohol, illegal drugs, prescription medications, and/or other substances (collectively "drugs or alcohol"), often the first question is whether the employee should be tested. The answer to such a question depends on whether testing is legally permitted in that situation as well as consideration of other factors.

California and federal drug testing laws are discussed in detail below. Briefly, it is important to know that California law does not require drug and alcohol testing, but for employers choosing to test, there are rules governing drug and alcohol testing of employees in the workplace. In contrast, Federal 1994 Department of Transportation (DOT) Federal Highway Administration regulations require employee drug testing in certain circumstances, such as for commercial drivers who operate commercial motor vehicles having a gross vehicle weight of 26,001 or more pounds.

If an employer suspects an employee is under the influence or impaired on the job, the employer should determine how to respond. Specifically the employer (with their legal counsel) should consider and determine whether it should:

? Test the employee; ? Obtain medical information and/or require a medical exam; ? Investigate, discipline, terminate, and/or take other employment actions; and/or ? Pursue criminal proceedings.

Oftentimes, the company may have several alternative courses of action, some of which may be pursued simultaneously or sequentially. In determining how to proceed, the company will need to consider the advantages and disadvantages of various approaches as well as applicable laws and best practices.

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