Transcript To Test or Not To Test:

To Test or Not To Test:
Considerations in Establishing
a Hospital Drug Testing Program
Association of
Washington Public
Hospital Districts
Washington
State Hospital
Association
Presenters
Julie L. Kebler
Chair
Employment, Labor and Immigration
Practice Group
Foster, Pepper & Shefelman PLLC
Taya Briley
Director
Legal Affairs and Clinical Policy
Washington State Hospital Association
Dick Goldsmith
Director
Legal Services and Health Policy
Association of Washington Public
Hospital Districts
Webcast Outline
• Reasons for drug testing
• Alternatives to drug testing
• Legal issues affecting testing
• Elements of a drug testing
program
• Tips for starting a program
Drug Testing:
Investing in Bad Economics
or Solid Quality Services?
Reasons to Test
• Ensure quality healthcare
• Improve efficiency
• Comply with federal regulations
(if applicable)
• Protect and enhance public image
• Control insurance costs
• Discourage applicants who use
drugs
• Avoid negligent hiring and
retention claims
Alternatives to Drug Testing
• Substance abuse policy
• Medical staff by-laws
• Contracts with physician groups
Substance Abuse Policy:
Key Components
• Cover drug and alcohol use
• Go beyond “being under the
influence”
• Focus on job performance
• Include “smell of alcohol”
• Address the theft of drugs
Legal Issues Around
Testing
• Public sector employers
• Private employers
• Union bargaining
Legal Issues: Employers
• Public sector employers
– Washington State Constitution
– “Public safety” positions
– Pre-employment testing
– Post-hire testing: “reasonable
suspicion”
• Private employers
– “Unreasonable testing”
Summary:
Employer Legal Issues
Testing
Public Sector
Private
Pre-employment
“Public safety”
positions only
Yes—must not be
discriminatory
Post-hire:
random testing
Probably not
Yes—avoid
“outrageous” or
“discriminatory”
actions
Post-hire:
Testing when
suspected use
Yes—If “reasonable suspicion”
Legal Issues:
Union Bargaining
• Pre-employment testing: public
sector and private employers
– No duty to bargain
• Post-hire testing: public sector
and private employers
– Duty to bargain
Elements of a
Drug Testing Program
Threshold Questions
•
•
•
•
Who to test
When to test
What to test
What to test for (drugs and
thresholds)
• Where to collect specimens
• Selecting a testing laboratory
• How to choose a Medical
Review Officer (MRO)
Who to Test:
Potential Testing Groups
• All job applicants
• All current employees
• Certain employees
“Best Practices” Tip:
Remember to include management!
Allegations of
Discrimination
• Federal Civil Rights Act
• National Labor Relations Act
• Americans with Disabilities Act
(ADA)
• Washington Law Against
Discrimination
Overview of ADA: Drug Use
“Individual with a disability”
status
Does not apply to
person currently using
illegal drugs
Employer can prohibit use in Yes—if use is illegal
the workplace
Employer can test
Yes—if use is illegal
Standards of job
performance and conduct
Employers may require
users to meet the same
standards as other
employees
Discrimination prohibited
Against person with
history of drug addiction
who has been
rehabilitated and is not
currently using drugs
Overview of ADA:
Alcohol Use
“Individual with a disability”
status
An alcoholic
Employer can prohibit use
in the workplace
Yes
Standards of job
performance and conduct
Employers may require
users to meet the same
standards as other
employees
When To Test
• Pre-employment
• “Reasonable suspicion”
• Post-accident
• Random unannounced
• Periodic announced
• Return-to-duty (“follow-up”)
Pre-Employment Testing
• Most cost-effective
• Restrictions:
– Washington public employees:
Public safety positions
– ADA
• No pre-offer medical inquiries and
examinations allowed
• Blood alcohol test = medical
examination (Equal Employment
Opportunity Commission)
“Best Practices” Tip:
Test for drugs and alcohol after offer is made.
“Reasonable Suspicion”/
“For Cause” Testing
• Constitutional
– First-hand observation of performance,
behavior, speech or odor OR
– Hearsay provided by reliable and
credible source OR
– Hearsay independently corroborated
• Key Concerns
– Level of training for supervisory
personnel initiating testing
– Repetition of training
Post-Accident Testing
• After occurrence of personal
injury or property damage
• Define “trigger”: level of severity
of injuries/damages that result
in testing
Remember:
In union negotiations, all topics are
subject to mandatory bargaining.
Random Unannounced
Testing
• “Neutral” selection process
• Most effective for deterrence
and detection
• Drawbacks: time-consuming
and expensive
Not recommended for public
sector employees:
Invitation to an immediate lawsuit.
Periodic Announced
Testing
• Commonly used for senior
management
• Of questionable value
Concern:
No definitive decision on
constitutionality of use by
Washington public sector employers.
Return to Duty/
“Follow-Up” Testing
• Periodic and unannounced
• Employees who have:
– Tested positive for drugs AND
– Participated in a treatment or
counseling program AND
– Resumed employment on
condition they abstain from
further drug abuse
What To Test
• Breath
• Blood
• Urine
• Head hair
• Oral fluids
• Sweat
Breath
• Measures current blood alcohol
level (BAL)
• Shortcoming: shows only
recent use (current impairment)
Blood
• Measures current and chronic
alcohol abuse
• May require balancing of
privacy interests
• Considerations: most invasive
and expensive collection
process
Urine
• Measures current and long-term
drug use
• Most commonly-sampled
– Ease of acquisition
– Accuracy of test
Urine (continued)
• Approved types of testing
– Immunoassay
• Quick
• Shows metabolite
– Gas Chromatography/Mass
Spectrometry (GC/MS)
• Drug-specific and sensitive
• Detects minute traces and use within 30
days
• Shortcoming: expensive
• Ability to detect: affected by drug,
dose, frequency of use, and
“individual chemistry”
Head Hair Samples
• Measures drug use within past 90
days (much longer period than
urine, oral fluids, and sweat)
• Easily collected, transported and
stored
• More difficult to adulterate than urine
Oral Fluids
• Less accurate for marijuana
• Shortcoming: when testing for
marijuana must also collect
another type of sample (for
example, urine)
Sweat
• Collected with wipes or patches
• Shortcoming of patch
– “Window of detection” only as
long as patch remains on skin
Notice of Proposed
Federal Rulemaking
• Revise Mandatory Guidelines for
Federal Workplace Drug Testing
Programs (notice published on April
23, 2004)
• Establish guidelines for testing head
hair, oral fluids and sweat for drugs
• Submit comments to U.S.
Department of Health and Human
Services (by July 12, 2004)
Recommendation:
Consider using head hair methodology if
guidelines are put into place.
Basic Testing:
Commonly-Screened Drugs
• Amphetamines
• Cannabinoids
• Cocaine
• Opiates
• Phencyclidine (PCP)
Extended Testing
• Barbiturates
• Benzodiazepines
• Ethanol
• Hallucinogens
• Inhalants
• Anabolic Steroids
What To Test For:
Types of Drugs and
Thresholds
• Cutoff levels
• “Ability to detect” variables
– Frequency of use
– Type of specimen
– Testing method
– Metabolism
– Other factors
Initial Drug Cutoff Levels:
Urine Samples
Drug
Initial
Level1
Amphetamines
500
Amphetamine
Methamphetamine
MDMA
MDA
MDEA
Confirmatory
Level1
250
250
250
250
250
Cocaine metabolites
150
100
Marijuana metabolites
50
15
Opiate metabolites
2000
2000
2000
10
Morphine
Codeine
6-acetylmorphine
Phencyclidine (PCP)
1
25
25
Nanograms per Milliliter (ng/ml).
Source: Mandatory Guidelines for Federal Workplace Drug Testing Programs
Where to Collect
Specimens
• On-site (workplace)
• Medical clinic
• Testing laboratory
Selecting the Laboratory:
What You Want
• Certified
– U.S. Department of Health and
Human Services
– College of American Pathologists
– State Department of Health
• High ratio of supervisors to staff
• High level of security
• Open, blind and double-blind
quality control specimens
Selecting the Laboratory:
What You Want (continued)
• Written chain of custody
process
• Use of bar coding
• Specimen storage time
• Contract
– Test procedures
– Indemnification
Medical Review Officer
(MRO)
• Responsibilities
– Review and interpret “positive” test
results
– Examine alternate explanations for
results
– Review chain of custody
documentation
– When employee denies illegal drug
use
• Review medical records
• Examine for clinical signs of drug
abuse
• Review recent prescriptions or
treatments (if appropriate)
Medical Review Officer
(continued)
• Qualifications
– Licensed physician
– Knowledge of substance abuse
disorders
– Certification and education
– No current federal or state
certification
– Proposed federal regulations:
training and exam
• American Association of MROs
(www.aamro.com)
Program Start-up Tips
• Policy development
• Administrator/supervisor
training
• Communication
• Implementation
• Monitoring
Policy Development
• Involved parties
• Determinations
– Hospital position on substance
abuse
– Rationale for policy
– Consequences of violations
– Program administrator
– Need for treatment
• Employee Assistance Program (EAP)
• State-run referral programs (physicians
and nurses)
– Confidentiality of records and test
results
Administrator/Supervisor
Training
– Policy
– “Reasonable suspicion”
guidelines
– Confidentiality concerns
– Reporting procedure for
suspected violations
Communication
• Oral
– Employees (before roll-out)
– Applicants
– New employees
• Written
– Acknowledgement
• Periodic re-communication
Implementation
• Notice of phase-in (60-120 days
before testing)
• Concurrent drug awareness
program
• Employee feedback
• Critical check: sufficient
supervisory knowledge
Monitoring
• Policy implementation
• Training
• Laboratory performance
• Confidentiality
WARNING!!!
Management’s failure
to consistently adhere to
the procedures of a
high-powered, ambitious
drug-testing program
will be the source of
endless litigation.
Questions?
Comments?
Julie L. Kebler
[email protected]
(206) 447-6404
Taya Briley
[email protected]
(206) 216-2554
Dick Goldsmith
[email protected]
(206) 216-2528
Thank you for
participating!
Please fill out the evaluation.