In any testing program, the employer should take care to execute the test appropriately, assure the test’s validity, and properly maintain the confidentiality of the results obtained.
The best practices to recommend are highly dependent on whether the employer is a public or private entity; federal drug testing requirements are highly regulated whereas for private employers in Virginia, there are less statutory restrictions in this area. However, the possibility does exist for legal challenges to drug testing programs.
There are various types and times when drug testing may be appropriate in your workplace.
Preemployment: Testing of an applicant before an offer or after beginning work with the employment conditioned on passing the test. If test is positive, can ask about any medications that may have affected the test.
Routine: Testing as part of a routine physical exam. Not used often.
Reasonable Suspicion: Used often. The employer has a specific, contemporaneous, and articulable suspicion of drug use based on observations of behavior, appearance, odors, speech, physical symptoms, pattern of abnormal behavior, arrest or convicted of drug offense, or corroborated reliable reports. This type of testing is susceptible to challenges based on uneven application among employees.
Incident Related: Used when an employee was in an on-the-job accident, possibly involving human error. Okay to use even if no injury occurred, especially if it appears that the accident could have been avoided or the consequences could have been minimized.
Random: This should be avoided except in high-risk, safety-sensitive occupations. This involves randomly selecting employees without notice or unscheduled testing of all employees.
A well designed drug testing program should contain the following components:
Employers should provide notice to applicants and employees regarding testing policies. Notice should contain:
Purpose, type of testing used, circumstances of when it can occur, describe the procedure, disciplinary policies and consequences of a positive test.
If random testing of employees in safety-sensitive positions, those employees should get a separate notice.
Employers should have everyone sign a consent form to acknowledge that they read the policy and agree to it.
Policy should specify the method of confirming positive results and it should allow the person to explain or challenge the results.
Policy should to the greatest extent possible protect the confidentiality of the employees and limit the disclosure of the results.
Include a release form releasing the company from liability arising out of the administration of the test or use of the results.