Social Media Post: Reasonable Suspicion?

(May 2020) 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

Laura, a new Program Administrator, called indicating she had quite a concerning scenario involving two employees, Dawn and Amy. Dawn was sent for a reasonable suspicion test a few days ago and was off the job awaiting drug test results. Amy saw a social media post from Dawn that Amy described as “alarming,” and emailed a screenshot to Program Administrator Laura. The social media account showed Dawn’s name and photo with a post indicating she was going for a work drug test but wasn’t worried because she had a friend’s child’s urine to substitute for her own. The date of the post matched the date Dawn was sent for the test. In short, Laura was calling to see if she should terminate Dawn based on this tip.

As with any situation involving a tip, we first asked lots of questions and gathered pertinent information about the specific tip, observations and information about both employees, and about Dawn and Amy’s relationship:

Dawn is a non-union employee who has worked for the company for about two months in a safety-sensitive position providing direct care to patients. Her attendance has been sporadic, reportedly due to medical issues, and has submitted paperwork and doctors’ excuses from a variety of facilities. She was not required to complete a pre-employment test but would have submitted to a new hire test in the next month had this situation not occurred.
According to Laura, Amy is a reliable and credible employee with no history of job performance issues. She has worked for the company for over a year and is reportedly well-liked by her supervisor and colleagues. She works on the same unit as Dawn, and there is no indication of any conflict between the two.

Upon further questions, we found out there were many contributing layers to the original reasonable suspicion situation:

When Laura approached Dawn about the smell of marijuana coming from her work locker (what prompted the suspicion), Dawn indicated she hadn’t used at work. This struck Laura as an odd statement but did not ask further questions.
Since Dawn works second shift and the company does not transport their employees for tests due to liability concerns, Laura called a cab to transport Dawn to the nearest collection facility that was open at that time of day. Unfortunately, Dawn waited over an hour, unsupervised, in the company’s lobby for the cab to arrive. She had her possessions with her, including her cell phone, during the wait.
When management asked Amy to pull up the actual post within the social media platform (versus just showing the screenshot), the post had been deleted.

Laura shared that her gut reaction was to terminate Dawn based on what she thought was a credible tip about Dawn substituting someone else’s urine for her own, a terminable offense according to their company’s drug-free workplace policy.

Response

We first shared with Laura what is considered a basic rule of thumb about responding to tips: Don’t act impulsively on a tip before

Collecting as much objective data from the “tipster” and other relevant sources as possible (e.g., who, what, when, where, how)
Requesting that information be put in writing with a signature
Observing the situation and employee — firsthand, if possible

Below are the options we encouraged Laura to consider and discuss with her management team before making a decision:

Contact the collection facility, acknowledging concerns that the employee carried in urine and ask if they have any documentable reason to believe that happened. Also, request proof the specimen temperature was within range (which should be reported on the Custody and Control Form). Lastly, compare the time the employee left in the cab to the time she arrived for her test.
Obtain a formal statement from Amy indicating when she observed and took photos of the social post and attesting that she didn’t alter the images.
Consider questioning Dawn about the tip (while maintaining Amy’s confidentiality).
Depending on the outcome of those actions, consider asking Dawn to submit to another test (under direct observation) and/or to complete a mandatory assessment based on the presenting concerns for the initial reasonable suspicion test.
Contact the company attorney to discuss the situation and all relevant details, especially if considering termination.

Laura’s team decided to gather the objective data from the collection facility, obtain a formal statement from Amy and to query Dawn about the post. They reviewed their plan with their attorney, including what they would do if Dawn admitted to substituting the urine.

The collection facility confirmed the temperature was within range and indicated they didn’t have any notes that would suggest the employee attempted to alter the test. The technician added that they have a lot of people move through their facility, so the team didn’t remember this employee specifically. He also indicated that he cannot see to the street or lobby to view people as they arrive and leave, so he couldn’t attest to seeing or not seeing anyone exchange anything prior to the specimen collection.

Laura and Dawn’s direct supervisor held a confidential meeting with Dawn to calmly review the recent information they received, while not mentioning their source. To the company’s surprise, Dawn quickly admitted to using someone else’s urine for her reasonable suspicion test. They explained their company’s policy on adulterating a test and that the corrective action was termination.

For future reference, Laura and her team revised their protocol for leaving an employee unattended while waiting for transportation to the collection facility. Not only will someone observe the employee during this time, but in the future the supervisor will follow the cab to the collection facility so that the entire drug testing process can be closely monitored. Their team believed this would help minimize the opportunity for adulteration in the future.

We reminded Laura to document this situation well, including conversations with Amy, Dawn, Dawn’s direct supervisor, their attorney and the collection facility. Laura indicated she was already on it.

IMPORTANT NOTE: Although not in Ohio, there are several states in which it is illegal to attempt to adulterate or manipulate a drug test. Consider discussing with Working Partners® whether a state-specific policy is warranted if you work in another state.

As a member of the Working Partners® Consortium, don’t forget your access to this troubleshooting service. As we advise our members, if it takes more than 10 minutes to figure out, call us for help and be safe, not sorry!

Call Working Partners® Consortium at 614-337-8200 or 866-354-3397.

*Names have been changed to protect identities.