CWA Local 4319: Drug Testing

Drug Testing:

What You Should Know and What You Should Ask

A Brochure for Union Stewards
Provided by
Communications Workers of America
Education Department
501 Third Street, NW
Washington, D.C. 20001-2797
www.cwa-union.org

CWA has put together this brochure so that you, the Steward, will be better informed and prepared to deal with drug testing at the worksite. The first part discusses three commonly held myths about drug testing. The second part outlines specific actions that the Steward should take when representing a member who has taken or is about to take a drug test.

This brochure does not in any way imply that the union agrees with or condones unilateral management drug testing programs. CWA realizes, however, that despite the Union's position on drug testing, individual employers may on occasion implement such programs. If faced with drug testing at the worksite the Steward should immediately contact and notify the appropriate Local officer and represent the member using the information contained in this brochure.

Myths About Drug Testing

Myth #1: Only Drug Abusers Need to Fear Drug Tests

Fact: Even if you don't take drugs, you could test positive. None of the tests are 100 percent accurate. The manufacturer of EMIT, the most popular test in use by employers today, claims a 95 percent accuracy rate. Studies have found the test to have an error rate of up to 20 percent. Even if the manufacturer is right, 5,000 out of every 100,000 persons tested could be wrongly identified as drug users.

One of the reasons that drug tests are inaccurate is that the chemical make-up of some legal drugs and foods is similar to that of some controlled substances. For example, Advil, Nuprin and Contact, common over the counter headache and cold medicines have tested positive for Marijuana. Sudafed, a popular allergy remedy, has tested positive for amphetamines. Poppy Seeds, baked into a bagel or hamburger bun, have tested positive for opiates. The technical word for this is cross-reactivity. Because of this cross-reactivity, most labs require workers to fill out a questionnaire revealing personal information about their medical condition. The lab questionnaire asks the individual to list any over the counter or prescribed medications that the individual is taking. This includes everything from aspirin to birth control pills. From No Doz to Valium. An employer can learn a lot of personal information about an employee just from the questionnaire that must be filled out in order to run the test.

Myth #2: Drug Test Labs Don't Make Mistakes

Fact: All tests are highly reliant on lab quality. The EMIT test is subject to error because it depends on a high degree of human accuracy and judgment in solution measurement, handling and reading. All tests required impeccable lab procedures and conditions from initial collection, to transfer and storage conditions, to equipment maintenance and lab cleanliness. However, there is no nationwide certification requirements or quality control programs for laboratories, nor are laboratories required to have certified or well-trained personnel. Many labs have dramatically increased the volume of tests they perform on a daily basis - increased business is good for the owners of the lab, but it can seriously affect the accuracy of the test results, if the technicians are overworked and rushed. Consequently, drug testing accuracy rates vary widely from lab to lab. According to the Centers for Disease Control (CDC), some labs have false-positive error rates as high as 66 percent.

Myth #3: The Employer is Only Concerned About the Health and Safety of its Workers

Fact: Even if the employer is sincere in its concern about the safety and health of its workers, drug tests will not assist efforts to determine accurately which workers are stricken with the illness of drug addiction. The capabilities of the test are limited. None of the tests in use today can determine when a drug was taken or whether a worker was impaired from performing the job. Moreover, once a worker has relinquished his blood or urine to the employer for analysis, the sample can be used to run other tests. In one case it was discovered that an employer routinely tested for pregnancy with the samples collected for drug screens.

The Steward's Role

Stewards should demand to be notified when management decides to test an employee and to be present, if the employee so desires when the test is administered Arbitrators and courts consider issues such a notice given, reasonableness or procedures, probable cause and accuracy when determining if a particular instance of testing should be upheld. As with any type of grievance, the questions the steward asks and the factual investigation are vital to developing a good case and protecting the workers' rights.

Questions the Steward Needs to Ask the Employer

When the company decides to test an employee, the union steward should keep a detailed record of management's responses to the following questions:

Why does the employer want to test this employee, what, if any, specific job related performance has been impaired and what level management requested the test?
What are the consequences for refusing to submit to testing?
What is the employee's status pending the outcome of the testing?
What are the employer's procedures for insuring confidentiality of the testing?
What are the consequences of testing positive?
What type of drug screening test will be used?
Will an initial positive test be confirmed by another test and if so, what type of test will be used to confirm?
How will the sample be collected and what are provisions for chain-of-custody? (Also, ask for chain-of-custody records.)
What is the name and location of the laboratory or technician performing the test?
Will the employer provide a copy of the laboratory report to the union, and, if so, when?
Will the employer provide, and pay for independent testing of the sample at a lab selected by the union and/or employee?

In 1989, the National Labor Relations Board (NLRB) held that employers are required to bargain over drug testing. Finding that drug and alcohol testing were "plainly germane to the working environment" and that the "test itself substantially altered the terms and conditions of employment," the NLRB held that drug and alcohol testing constituted a mandatory subject of bargaining. Thus, the unilateral implementation or modification of a drug-testing program by the employer would be unlawful.

Questions the Steward Needs to Ask the Worker

In addition to asking questions of the employer, the union steward should seek the following information from the employee involved:

Determine whether any other substances could result in a "false positive." Ask:
- What, if any, prescriptions, over the counter drugs, or other medications has the employee used and the extent of such use?
- What, if any exposure has the employee had to controlled substances (passive inhalation of marijuana may cause positive results)? How long ago and under what circumstances (off the job, weekends, etc.)?
Consider sending the employee to an independent physician or toxicologist immediately for testing and a substance abuse assessment (particularly when the employer refuses the union's request for a portion of the sample). While it is not that expensive, it needs to be decided who will pay for this testing.
If some incident prompted the employer to test, obtain a written statement from the grievant describing the incident. Obtain any explanation for erratic behavior (for example, diabetics ma sometimes appear to be intoxicated because of too much or too little insulin).

What if the Worker Tests Positive?

In the event the employee does test positive and is disciplined the steward should be prepared to raise the following issues and defenses:

Company had no probably cause to test or probable cause not based on objective criteria; order for test not reviewed by higher levels of supervision.
The tests result in a "false positive" due to the prescription drug, over the counter medication or passive exposure.
Company and/or laboratory procedures were deficient because:
Test used is inaccurate, interpretation too subjective, no confirmatory test done; laboratory or technician not licensed, certified or otherwise qualified to perform and interpret tests;
Collection and/or chain of custody procedures inadequate;
Failure to notify employee of consequences of on-the-job drug use, positive test or refusal to take test;
Union not provided with portion of sample for independent tests; tested sample not preserved.

Employee Assistance Programs

Employee assistance programs should be utilized before any disciplinary action is taken. If there is no established program where you work, the member should be referred to the Local's Community Services Committee for counseling and treatment.

The solution to the problem of drug addiction at the workplace is treatment - not punishment.

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