Knowledgebase-City Drug Testing


Information Product

Title:City Drug Testing
Summary:MTAS was asked several questions about the legalities of drug testing and for sample policies for the City.
Original Author:Jones, Bonnie
Co-Author:
Product Create Date:08/06/2012
Last Reviewed on::01/03/2017
Subject:Personnel--Health and safety--Drugs--Laws and regulations; Personnel--Health and safety--Drugs
Type:General
Original Document: City Drug Testing.pdfCity Drug Testing.pdf

Reference Documents: Drug Testing Training 4-27-11 V2.pptDrug Testing Training 4-27-11 V2.pptSmall City Drug Testing Jeff City 2012.docxSmall City Drug Testing Jeff City 2012.docx02_01_11_CROSSVILLE_DRAFT_DrugandAlcohol_.pdf02_01_11_CROSSVILLE_DRAFT_DrugandAlcohol_.pdfwhen may a public employer require a drug test.pdfwhen may a public employer require a drug test.pdf

Text of Document: From: Jones, Bonnie Curran
Sent:
Monday, August 06, 2012 2:58 PM
To:
Hardy, William P (Pat)
Subject:
City Drug Testing

Hi Pat,

You had several questions about the legalities of drug testing and sample policies for your City. Let me know if you want more information or if I did not address the current questions.

In Tennessee, most employers can generally do the following in accordance with federal laws:

1. Drug Test ALL employees upon making an offer of employment (including non -safety sensitive positions)
2. Drug Test Safety sensitive positions randomly. i.e., Police, Fire, Employees working with children, bus drivers, gas line operators, water safety positions, 911 operators, CDL holders if required under job description, and any other position that reasonably poses a threat to the health and safety of the public.
3. Drug Test ALL employees after any accident on the job.
4. Drug Test ALL employees for reasonable suspicion- but generally training should be done before supervisors determine what is legal with respect to reasonable suspicion.

We generally don’t recommend random testing of NON safety sensitive positions such as clerical employees. Also, just because an employee drives a work vehicle may not mean they are safety sensitive, so keep the publication I am attaching in mind before determining what positions are safety sensitive. There really needs a significant risk established in order to defend safety sensitive.

Reasonable suspicion also needs to be handled with proper training. I generally tell cities focus on failure to perform job duties when a performance issue arises. Unless the supervisors have been trained in reasonable suspicion use caution with that authority.

1. Here is a great publication on balancing constitutional rights of employees and the City's best interests.

2. Attached are two policies created from our model language, I attached a small minimal version for small cities (Jefferson City) and a larger one (Crossville), both are only drafts but will give you an idea of how a policy looks.

3. The State of Tennessee has a "TN DRUG FREE WORKPLACE" policy and procedure and it is essentially the most strict policy a city can adopt and generally zero tolerance.

I believe the city will get a discount on workers’ comp premiums if they adopt the Tennessee Drug Free Workplace Solution. You would need to go to their website and look at their policies, and follow all their requirements including training etc.

http://www.tn.gov/labor-wfd/dfwp.html

The Solution: A Drug Free Workplace Program

It's Good for Employees. Employees are more productive and have better morale when their health and safety is protected from the increased dangers and risks that substance abusers present in the workplace. Workers will appreciate your concern for their health, safety and well-being.
It's Good for Employers. The covered employers choosing to participate in this voluntary program will be entitled to the following,
( pursuant to T.C.A. 50-6-418, 50-9-100 et. seq., and 50-6-110 ):
      • Receive a 5% premium credit on their workers' compensation insurance policy.
      • Discharge or discipline of an employee, or refusing to hire a job applicant, who is found to be in violation of the covered employer's Drug Free Workplace Program will be considered done for cause.
      • If an employee suffers a workplace injury and receives a positive confirmed post-accident drug test for illegal use of drugs or alcohol, or refuses to submit to a post-accident drug or alcohol test, the burden of proof is shifted to the employee.
      It's Not Difficult. Model policies and programs are available in the information kit (available by request).
      It's Not Expensive. Use existing materials and the information provided in the information kit, it's all you need to get started. This guide will assist you to develop a comprehensive program including; drug and alcohol testing, supervisor training, employee education and provide for employee assistance.

Covered employers should realize a cost savings that is sufficient to pay for most programs.

You don't have to do it alone.

A variety of resources are available to assist you; your Business Insurance agent, your industry trade association representative, the staff of the Tennessee Drug Free Workplace Program, or try calling the organizations listed in the information kit. You can even contract with a qualified Substance Abuse Program Administrator to do the job for you!

Preparing Your Drug Free Workplace Program
Important: Study the Rules & Guidelines of the Tennessee Drug-Free Workplace Program (in the information kit), make certain you understand them.

1. Plan and develop your drug free workplace program carefully.

Talk to employees and supervisors about the benefits of a drug free workplace.

Stress the positive aspects of a drug free workplace...management and workers meeting their shared responsibilities for a safe and healthy work environment. Case studies show a well-planned program to reduce substance abuse can increase productivity, reduce accidents, and avoid increased costs due to substance abuse related insurance claims.
Listen to employees' ideas.

Ask for their input: "We're going to implement a drug-free workplace program. What suggestions do you have for us as we do this?" Compliance with any change in company policy requires the understanding and acceptance of all employees. If your company's workers are represented by a union, the development of the policy will be a part of the collective bargaining process. A firm, compassionate program will help to provide a healthy and safe workplace for everyone.

2. Consider the resources available to you. Determine the best way to provide each of the following:

( Covered employers must meet minimum requirements and guidelines established in T.C.A. 50-9-100 et. seq. )
A Drug and Alcohol Testing Program.
An Employee Assistance Program (EAP) for workplace substance abuse treatment. You may contract with a designated treatment provider or furnish a directory of local EAP/substance abuse treatment providers to employees.
A Workplace Substance Abuse Recognition Training Program for Supervisors.
A Workplace Substance Abuse Education/Awareness Program for All Employees.
Important: Before taking the next step, employers should consult with an attorney concerning the legal aspects of your program.

3. Write down your substance abuse policy then print it on your company letterhead.

The policy should expressly prohibit the illegal use of drugs and/or abuse of alcohol by any employee and spell out the consequences of policy violations. Sample policies are printed in the information kit. You may duplicate the sample policy word for word, customizing it with your company's name, or you may change portions of it to suit your specific needs.

Implementing and Maintaining Your Drug Free Workplace Program

4. Distribute the policy statement to all employees and post notifications of your drug free workplace program.

Employees must be notified at least 60 days before drug and alcohol testing can begin. (T.C.A. Section 50-9-105)
Place notices in prominent locations throughout your business facilities as well as on your employment applications. All employees must be given a copy of your substance abuse policy statement and sign a drug and alcohol testing consent form.

5. Educate your employees and supervisors about the program.

Hold a meeting for all employees - labor and management - to explain the value of maintaining a drug free workplace. Try to answer all questions and make yourself available to meet privately with employees to discuss any concerns they may have.

6. Maintaining the certification of your program.

Last, but not least....make a long-term commitment to participate in the Tennessee Drug Free Workplace Program. Ultimately, your program will have a greater impact when everyone involved clearly understands that your company is serious about addressing the problems caused by substance abuse in the workplace.
Please Remember; covered employers must re-certify their compliance each year with the Tennessee Department of Labor and Workforce Development. A Tennessee Drug Free Workplace Application Form, ( LB-0393 ed. 9-97 ), must be submitted at the renewal of the worker's compensation insurance policy or before the anniversary date of original Tennessee Department of Labor and Workforce Development certification.

Some Questions and Answers about TN Drug Free Workplaces

Q. When an employee/applicant is drug tested, is the employer required to utilize a Medical Review Officer (MRO)?

A. Yes. As defined in the Rules and Guidelines, "Medical Review Officer" or "MRO" means a licensed physician, employed with or contracted with a covered employer, who has knowledge of substance abuse disorders, laboratory testing procedures and chain of custody collection procedures; who verifies positive, confirmed test results; and who has the necessary medical training to interpret and evaluate an employee's positive test result in relation to the employee's medical history or any other relevant biomedical information. The MRO should be used to review all positive tests with the employee or applicant before the employer is advised of the test results. Using an MRO provides the employer with a medically qualified interpretation of a positive test result, which would be defensible in a court of law. The MRO helps to protect both the employer and the employee.

Q. How accurate are the drug testing methods that I will be required to use?

A. If testing is done in accordance with the Rules and Guidelines, ( Chapter 0800-2 ), the results are highly accurate and reliable. Sometimes, you'll hear that urine drug tests can be "beaten". Once, this was true; people could add water, soap, ammonia, vinegar or even table salt to a specimen and produce a negative test result. Today, collection site and laboratory procedures make tampering nearly impossible.
At the collection site, employees must leave coats, purses and briefcases outside the cubicle where they provide the specimen. The person collecting the specimen adds a bluing agent to the toilet bowl and remains in the area directly outside the stall while the specimen is being given. Immediately afterward, the collector applies a temperature strip to the specimen to make sure that it matches body temperature. The collector also checks the specimen for unusual color and odor. Later, when the specimen arrives at the laboratory, technicians perform simple tests for gravity and acidity to detect adulterated specimens.
Another misconception is that drug testing is prone to inaccuracy with so-called "false" positives. Several years ago, some over-the-counter drugs such as ibuprofen or diet pills could cause false positives for illicit drugs. Today, tests have been refined to the point where this does not occur.
A more legitimate concern is that of true "false" positives. That is, where the laboratory accurately determined the presence of a drug, but its presence is not the result of abuse or illicit use. Certain foods and medicines do contain detectable amounts of "controlled" drugs. For example, poppy seeds used in bagels and other baked goods can sometimes contain enough morphine to produce a detectable level in urine. Over-the-counter drugs that are sold in countries outside the U.S. often contain codeine. Codeine is also found in commonly-prescribed cough and cold medicines, such as Tylenol with codeine, and can produce a positive result in drug tests. In all these cases, a Medical Review Officer (MRO) is able to determine if the drug is being properly and legitimately used.
While there have been some reports of errors, they can usually be traced to the fact that a confirmation test was not performed to verify an initial positive result.

Q. Could there be legal challenges?

A. Yes. The United States Constitution, which restricts governmental but not private actors from arbitrarily interfering with individual rights, prohibits the Government from unreasonably infringing on workers' rights relating to privacy and job security. With respect to workplace privacy, the Fourth Amendment to the U.S. Constitution prohibits unreasonable "searches." In 1989, the Supreme Court, considering the issue of workplace drug testing for the first time, concluded that a public employer taking of blood, urine, or breath specimen for the purpose of alcohol and other drug testing, (or testing conducted by a private employer at the request of the Government), constitutes a search under the Fourth Amendment because it implicates significant privacy concerns. The Court further held that the determination of whether such testing is "reasonable" and therefore constitutionally valid, requires a balancing of the degree of invasion on the individual's privacy interest against the promotion of the employer's legitimate interests. Employment decisions based on a substance abuse test result can be contested. The Courts favor employee testing that is based on procedures that are clear, fair, consistent, and communicated in a written policy statement.

Tennessee Department of Labor and Workforce Development
Drug Free Workplace Program
Lance Wheaton, Program Coordinator, 615/532-1321
Dr. Robert Kirkpatrick, Medical Director
220 French Landing Drive
Nashville, TN 37243-1002
1-800-332-2667
For a copy of the Drug Free Workplace Information Kit, please download the information below.

Download DFWP Form in PDF Format


Bonnie C. Jones, M.A.Ed . | Human Resources Consultant | The University of Tennessee- Institute for Public Service | p: 865.974.0083 | f: 865.974.0423 | bonnie.jones@tennessee.edu| www.mtas.tennessee.edu