(Spring 2018) Real Life Incidents: Working Partners® Consortium members receive phone support and consultation about drug-free workplace (DFWP) issues – a benefit we term “troubleshooting.” Here is a brief description of a troubleshoot and our response/suggestions.
Working Partners® recently received the following email from a drug-free workplace (DFWP) Program Administrator (PA), whose company is a member of the Working Partners® Consortium:
Subject: HELP! Positive tests
We just had 2 employees kicked off a construction site because they apparently tested positive on a test the GC [General Contractor] asked them to take! I need some help determining next steps. Can someone give me a call?
We immediately reached out to the PA who sent the email. During our conversation, she reported that a number of her employees were on a job where they were randomly tested at the request of the GC. Two of the tests came back with positive results. The superintendent running the job told those two employees that they had to leave because of their test results, so they came back to the office and informed the PA of the situation. The PA said she had no idea the employees were going to be tested, let alone be kicked off the job. She was also concerned that they had been allowed to drive off the site (i.e., since they have reportedly tested positive).
The PA wanted to know the next best steps to handle this situation, especially given these employees have management potential with no history of positive tests or reasonable suspicion. The employees were sitting in her office waiting for instructions.
This situation has lots of layers. Not only is the PA dealing with a report of two positive tests, but she also needs to determine why the employees were tested in the first-place and what the GC’s expectations are from here. We decided to tackle this in three pieces: review the contract from the GC, review her company’s DFWP policy and determine next steps for the two employees.
Because the PA did not want to risk having the employee drive with positive tests “on the books,” she opted to have them wait in an office with a supervisor while she continued working with us to get the situation resolved.
We suggested the PA search her contract with the GC for answers to several questions she had about the situation:
Question 1: What does the contract say about drug testing?
- When could the GC request a test?
- What substances will be tested for?
- What methodology will they use for the test?
Findings: The contract stated employees could be tested in a variety of situations, one of which was on an unannounced, random basis. Per the contract, the GC is using a best-practice drug testing panel, not only matching federal standards by testing for semi-synthetic opiates (e.g., Oxycontin®, Vicodin®), but exceeding them by including additional substances. They are also utilizing lab-based testing of urine specimens that are sent to a federally certified lab for processing.
Question 2: What happens if a test is positive?
- How is the company notified of a test result and do they get a copy?
- What safety measures are taken when employees are asked to leave the job (e.g., company has to pick them up or they have to call for transportation)?
Findings: She wasn’t able to locate information outlining how a sub-contractor would be notified of any positive test results or what measures would be taken to ensure safety once the employees were told to leave the job.
Question 3: Will the employees be permitted to work for that GC in the future?
- What steps does each employee need to take to get back on the job?
- What documentation needs to be provided?
Findings: The contract indicated that employees testing positive would be removed from the job site. However, she couldn’t locate verbiage stating when (or if) they could return.
Noting there were questions she couldn’t answer, the PA planned to follow up with the GC to express her concerns and tighten up these operational processes.
The PA then researched her DFWP policy to confirm it included “contractor-required testing.” She also confirmed both employees had been given a copy of the policy and signed an acknowledgment of receipt, which served as fair notice that being tested on a job site was a possibility.
With regard to the employees, the PA decided to proceed as she would with any other first positive test — refer them for a mandatory chemical dependency assessment. The PA indicated she would have them each sign an assistance (aka second-chance) agreement, and inform them they would be off the job until
- the chemical dependency professional provides clearance for the employee to return to work, and
- the employee takes a return-to-duty test and provides a negative result.
Her hope is that this situation will set them on the right path in preparation for management roles in the future.
Before ending our call, we reminded the PA that employee-centered situations require immediate attention and therefore, where possible, we recommend calling instead of emailing about an issue.
As a member of the Working Partners® Consortium, don’t forget you have access to this troubleshooting service. Be safe, not sorry!
Call Working Partners® Consortium at 614-337-8200 or 866-354-3397.
DISCLAIMER: This publication is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the publication are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.