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Reasons for Testing - Reasonable Suspicion
Every employer must be prepared for reasonable suspicion testing. Why? Because if you have “reasonable suspicion” that an employee may be under the influence of drugs and/or alcohol…and you don’t do anything about it…your company may be exposed to risks far beyond “employment” issues. As one example: the employee, in the course of their employment, injures/kills someone who is not your employee. Aside from the human tragedy, you can also anticipate a call from a plaintiff attorney who will be using (expensive) words like “gross negligence, depraved indifference”, etc.
If your company doesn’t have a comprehensive substance abuse testing program, and you wait until a reasonable suspicion situation occurs, and then you decide that you better send that person in for a reasonable suspicion drug/alcohol test:
(1) Call your attorney. Immediately! Seriously!
(2) Never “send” anyone for a reasonable suspicion test (or send them home)…take them (see: one example above);
(3) Asking a Lab/MRO/TPA to do a reasonable suspicion test for your company if your company is not already doing pre-employment and/or random testing with that service is called “adverse selection”…like trying to buy life insurance while you are in intensive care after surviving a massive heart attack;
(4) If you do find a Lab/MRO/TPA service to do this “adverse selection” testing, you will almost certainly be working with people who haven’t thought this through very thoroughly…what else haven’t they (or you) thought through thoroughly? You’ve already missed getting this right…what else might you have missed?
(5) If you want to work with people who have thought this through thoroughly (and can help you think this through thoroughly) you should be prepared to implement a real drug testing program…ideally, a Drug Screens Plus testing program.
(6) If you ignore all the above and use one of those instant, on-site test kits, see “one example“ above.
This is one of those situations that can come back to “haunt you” long, long after you think you’ve dodged the bullet…and you’ve got a lot more to worry about than my mixed metaphor! See Litigation Support. Read about why we have to occasionally take a case on the “other side”…advising the plaintiff attorney and providing expert witness testimony.
If a reasonable suspicion test comes back “negative”, is it “O.K.” to put the person back to work? That depends. For example: if the reasonable suspicion was based on apparent impairment, maybe there is something else that gave rise to the apparent impairment…something (there are numerous possibilities) that would contraindicate putting that person back to work. See “one example” above.
In comparison to the potential liability (e.g., often something in “7-figures”) for not doing a reasonable suspicion test or for accepting a “negative” result as sufficient for returning the employee to work, the potential liability for doing a reasonable suspicion test with insufficiently “reasonable” suspicion (while still a problem) is generally much lower (e.g., reinstating an employee with back pay). And, you can easily deal with that risk by obtaining reasonable suspicion training for managers or supervisors who should be prepared to make such decisions. See Education & Training
There are many “wrinkles” that can occur in connection with handling reasonable suspicion situations. We invite our clients to call us if you have even a hint of a question about how you should proceed. See Members Only.
How can I set up an effective reasonable suspicion testing program?
Contact Jim Carlyle at 800-459-9012 xt 787.
