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Responding when an employee cheats a drug test

(August 2019) 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.

Question/Situation
A Working Partners® Client Care Consultant received a call from a drug-free workplace Program Administrator (PA) of a small construction company saying she thought one of her employees was trying to cheat a drug test. The PA shared she had notified this employee, “Mike,” that his name had been drawn for a random test. Knowing that he needed to show proof of ID at the collection facility, Mike asked to drive home to get his driver’s license before proceeding to the collection facility. While not ideal, the PA didn’t think this was cause for concern because she didn’t have any reason to believe Mike was misusing substances or that he would do anything to interfere with the testing process.

Once at the collection facility, Mike produced his urine specimen, and when the collection site representative temperature checked the specimen, it was outside of the acceptable range (90-100 degrees Fahrenheit). The collection site called the PA to report the temperature issue and to ask for direction. Even though the company is not mandated by the Department of Transportation (DOT), the company models DOT testing protocols and therefore requested that the employee be asked to give another specimen, this time under direct observation.

When asked to give this second specimen, Mike apparently said he “couldn’t go.” The collection site attempted to follow DOT protocols for shy bladder (i.e., drinking a specific amount of water over a set period of time), but Mike “expressed frustration” and left the facility. As a result, the collection facility ruled the test a “refusal” and called the PA to report the outcome. From there, the PA called Working Partners® to see how she should respond to Mike when he returns to the office.

Response
Having a well-written drug-free workplace policy/program truly helped this Program Administrator confidently move through the process. Her policy/program, for example, outlines testing expectations and corrective action for refusing a test, which Mike had agreed to by signing the company’s policy acknowledgment form when he was initially hired.

Working Partners® reviewed corrective action per the Company’s policy/program with the PA, which is to terminate or treat the result like a positive (i.e., referring for a mandatory alcohol/drug assessment). The company had no precedent around this type of a situation, so they decided they would refer for an assessment (vs. terminate) since Mike had been with them almost five years and had no prior alcohol/drug or performance issues. Working Partners® walked through the referral process with the PA and brainstormed possible actions if Mike got defensive or refused to go.

After resolving this immediate situation, we spent a few minutes with the PA to discuss things the company could do to minimize the chances of this type of situation happening in the future and to respond effectively and efficiently in the event it does:

  • Obtain employee signature on the company’s drug-free workplace policy and provide him/her with a copy of the document for review.
  • Provide annual employee education that includes testing expectations and corrective action for not complying with testing procedures.
  • Do not give employees forenotice they will be tested or allow them to report for a test on their way to or from work.
  • Instruct the employee to report directly to the collection facility and compare the time of departure against the time of the collection to confirm that occurred.
  • Consult with the collection facility to see if they will accept alternative form(s) of I.D. in the event an employee does not have a drivers’ license.
  • Consider transporting employees to the collection facility if there are concerns about adulteration/substitution.
  • Establish a protocol with the collection facility to contact you with any concerns before the employee leaves their premises.
  • Continue to follow DOT testing protocols when receiving a result other than positive or negative (e.g., invalid, adulterated, dilute negative).

Proactive communication, education and training on your company’s drug-free workplace policy is an effective way to prevent employees who may try to cheat a test.  If employees know they have a limited chance of success and that there are consequences for attempting, they may be motivated to change their behavior to ensure their continued employment.

As a member of Working Partners® Consortium, don’t forget your 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.