Paying for Drugs!

Paying for Drugs!
Posted by FoM on January 04, 1999 at 04:50:01 PT

Substance abuse raises liability questions for business owners.One Friday night, Billy Mack, a loading dock supervisor, stopped his red half-ton pickup at his favorite bar for his nightly drink before starting the midnight shift. 
One drink led to two, and as he pulled into the plant parking lot, he swerved to avoid a light pole and struck a fellow employee. At about the same time, Carla was rotating onto her late-night shift at a retirement home and downed some pain-killers meant for a terminally ill patient. As unwelcome as these scenarios are, they raise liability concerns for employers. "If an employer has noticed that an employee has a drug or alcohol problem and the employee is risking danger to himself or others ... then you'd better believe the employer will be held responsible," said David Kuhl, employment attorney with the Rider Bennett law firm in Minneapolis. That fact is not lost on employers. The American Marketing Association recently conducted a workplace drug testing and abuse survey that found 81 percent of its members test for drugs. Since 1987, drug testing in U.S. corporations has increased by 277 percent, more out of concern for legal liability issues than anything else. Most companies hire a third party administrator for the test. "Companies need to first of all understand what their needs are, and a lot of companies don't know what they're looking for," said Don Weber, chief executive of LaCrosse, Wis.-based Health Services of North America. Companies should develop a written agreement that details their policy on substance abuse, and then choose a third-party administrator to help enforce it. Companies must identify the functions they would like a TPA to handle, such as the frequency of testing, said Donna Smith, senior vice president at Boca Raton, Fla.-based Substance Abuse Management Inc. "Do they want applicants (for pre-employment screening) to call the management company and set up a testing time? How often do companies want the testing done, and on a random or regular basis?" Outsourcing drug testing services is a task that involves more than taking urine samples, and is fraught with legal ramifications. As drug testing gains popularity, fly-by-night services abound, and avoiding them requires some research on the part of employers. Because there's no mandatory certification or licensing board for screening services, the Substance Abuse Program Administrators Association is a good resource. This voluntary membership body offers certification to its members and provides a list of members by location to employers. Companies should submit a request for proposal to third-party administrators that outlines their needs. TPAs should submit written proposals detailing the services they provide. "Make certain the TPA works with a certified lab," Mr. Weber said. "There are only 50 throughout the United States. Also, when a specimen goes through initial screening, you want to make sure it's gone through confirmation." Laboratories and medical review officers, who provide this double checking of test results, are certified by the federal government. Lists of certified labs and MROs may be obtained through the U.S. Department of Health and Human Services. "TPAs should also offer indemnification from false positives," Mr. Weber added. "They should be able to back up their results." Some TPAs offer legal counsel to advise clients on any matters ranging from a positive test result to an employee drunk on the job. Depending on the industry, any combination of controlled substances can be tested for, but the industry standard set by the federal government suggests tests for marijuana, cocaine, amphetamines, heroin and PCP. "In most cases, we recommend following the federal guidelines, and also testing for alcohol, the most abused substance in the workplace," Mr. Weber said. For certain industries, such as transportation and health care, testing can expand to include 10 drugs, including LSD and barbiturates. Testing underscores the need for a corporate response on drug abuse. "You want to give an em-ployee a chance to come forward with a problem," says Mr. Weber, "and if they don't and (fail) a random test, that they are given an opportunity to go through rehabilitation," and retain their jobs. Some states, including Iowa and Minnesota, mandate that employers can't terminate employment on the first positive test, and they must offer employees a chance to rehabilitate. 
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