Pass The Drug Test Article 84 From Always Test Clean

Issues:

• · The just cause standard covers any problems caused by on the job impairment - testing is not necessary

• · If testing is done, the test should be for on-the-job impairment, not-off-the job usage

• · Positive test results should be treated as a health problem - not as a discipline problem

Drug & Alcohol Testing

It's not necessary - and coming from employers who routinely demand mandatory overtime and that fewer and fewer employees handle ever-increasing workloads - drug and alcohol testing is nothing more than out-and-out hypocrisy.

Under the guise of concern for their employees safety and health, a large percentage of employers are now demanding the right to conduct some sort of drug and alcohol testing. To most workers this smacks of hypocrisy. The same employers who routinely demand mandatory overtime or wage cuts or expect the workforce to handle highly toxic substances suddenly are professing concern for workers. Most employers see drug and alcohol testing as just another hammer to hold over the heads of the employees.

Is Drug and Alcohol Testing Necessary?

NO. Employers already have the right to discipline for just cause, and being drunk or high on the job counts as just cause. Education and employee assistance programs have been found to be effective in dealing with workplace drug and alcohol abuse; there is NO data to support the effectiveness of drug testing.

The only legally-required mandatory drug and alcohol testing is for workers in "safety sensitive jobs in the transportation industry." (See below for information concerning these jobs.) Most UE workplaces and jobs are NOT covered by the Department of Transportation regulations. Nevertheless, despite it not being necessary, testing is a problem that unions, especially stewards, have to deal with.

Pass The Drug Test Should the Union Bargain Over a Drug and Alcohol (D&A) Policy?

YES. Whether the employer wants to bargain a policy during contract negotiations or proposes a new policy while the contract is in effect, the Union should insist upon bargaining. If the union does not bargain the employer can institute any policy they want. The NLRB, arbitrators and most State Labor Relations Boards have ruled that D&A policies are "reasonable work rules" that an employer has the right to implement. However, they have also ruled that D&A policies are mandatory subjects of bargaining, since implementing one would be considered a major change in working conditions.

As in all fights we must be sure to involve and mobilize the membership. Employers often try to divide the membership on this issue, since the overwhelming majority of workers don't drink or use drugs on the job. We can turn this around simply by pointing out, "why subject the majority to testing if only a few people have a problem." We then can unite the members around fighting for a no testing policy. If it looks like we can't win that, then we make the fight for the best, least harassing policy.

What Should be in a D&A Policy?

Here are some of the basic items we should insist upon being in a D&A policy if we have to agree to one.

NO random testing.

Testing for "just cause" or "reasonable cause" only. These can be defined as slurred speech, inability to walk straight, erratic behavior, or other visual signs that would cause a reasonable person to believe the person was under the influence of something.

If an employee admits that they have a problem then no testing should be necessary and the only discussion should be on whether a rehabilitation program is necessary.

The union should bargain for language that says what is unacceptable is on the job impairment. We want testing that shows on the job usage or impairment, not off-the-job usage. It is not the employer's place to monitor off-the-job conduct.

Your Employer is Not Your "Moral Monitor" Pass The Drug Test There have been many cases where the employer says that the purpose of testing is to stop ANY use of illegal drugs, on the job or off the job. While the union does not condone the use of illegal drugs it is certainly not the role of the employer to be the "moral monitor" of the employees. In one case where the employer was insisting on this, the union then began to demand the right to test the employer and supervisors for immoral acts they might take part in outside of work. The union proposed that all bosses and supervisors take lie detector tests to see if they were racists. The employer soon agreed that testing would only take place if the employees showed evidence of on the job impairment.

If testing is to occur then the employer must provide transportation for the employee to the testing facility. The worker must be paid for time missed from work. Use breathalyzer, saliva or blood tests. There is a difference in what different kinds of tests show. Urine tests should be avoided as these tests will show usage of alcohol or drugs, including usage that occurs off the job or weeks earlier. If urine testing is agreed to, then the level of alcohol or other drugs present in the body Pass The Drug Test must be set to only show current usage and impairment. Breathalyzer tests for alcohol will show recent or on the job usage and impairment. Blood testing also shows recent use, as does saliva testing for marijuana use.

The UE Field Organizer assigned to your local can obtain (from the UE Education Department) specific test levels for different drugs depending on what type of testing is used, including urine testing.

Language must be included that covers a person's right to privacy while being tested. We must always point out that the employee is innocent until proven guilty.

Language must be negotiated that includes the employee's right to have a second test done by a different agency using the same samples. This must be done at the employer's expense.

The agency doing the testing must be able to guarantee a safe "chain of custody" for the evidence. This means proof of who was handling the evidence at all times and proof that samples couldn't get mixed up with other samples. After a sample is given the employee should sign the seal that is used to close the sample vial.

Finally, we want language that says that rehabilitation, not punishment, is primary. Employers must recognize that alcohol and drug usage is an illness. Employees should be allowed to use Employee Assistance Programs that take place after work. Only in extreme cases should an employee be made to leave work and attend a rehabilitation clinic. While at the clinic the employee should receive sickness and accident pay. The A&D policy must take into recognition that these illnesses are hard to cure and therefore termination can only come after a series of failures of rehabilitation efforts.

In the case of termination, arbitrators look more kindly upon employees who have been attending rehabilitation programs.

What SHOULD NOT be in a D&A Policy?

Never agree to language that includes items such as "lower production," or "rudeness to superiors" as reasons why D&A testing can be implemented.

We should not agree to language that uses accidents to trigger testing unless an accident is coupled with the other "reasonable causes" listed above.  Does the ADA (Americans with Disabilities Act) Cover Alcoholism or Addiction?

Under the ADA, alcoholism is considered a disability ONLY if the employee is actively undergoing treatment for it. If this is the case then an employee should not be fired for being an alcoholic. This does not mean that the employee can come to work drunk, which would in most cases constitute a danger to other workers. The ADA excludes addiction to illegal drugs from being considered a disability.

Who's in a "Safety Sensitive" Position?

Drug and alcohol testing is legally required only for workers performing "safety sensitive functions" in transportation industries under the Omnibus Transportation Employee Testing Act of 1991. This law is enforced by the federal Department of Transportation.

The DOT regulations say they are testing for both on the job and off the job usage, and although we don't like this, it is currently the law. This does not mean that we have to agree to employees being faced with the same burden who are NOT covered by the DOT regulations.

Each of the Transportation Department's agencies have issued their own regulations - if there are questions, it is worth checking with them directly as to who is considered "safety sensitive" (see below).

For example, the Federal Highway Administration includes mechanics in the alcohol and drug testing pool only if they have a commercial driver's license (CDL). On the other hand, the Federal Aviation Administration includes all mechanics involved in aircraft maintenance.

Industry

Includes

Trucking, Commercial

Commercial Drivers License Holders

Aviation

Pilots, Flight Attendants, Mechanics, Others

Railroads

Engineers, Operators, Dispatchers

Pipeline Operators

Operations and Maintenance

Maritime Crews

Operating Commercial Vessels

If your employer asserts that your workplace falls under the Omnibus Act, the only way to know for sure is by talking with the agency involved. First, ask the employer which agency's regulations apply. Then, call the appropriate agency to see which employees are considered "safety sensitive" under their regulations.

Stewards and Drug And Alcohol Testing

When disputing any employee drug and alcohol testing case or grievance, the actions a steward takes and the factual investigation are critical in defending a worker's rights. Demand to be notified and to be present, if the employee consents, when the test is administered. Before the test, ask and document the answers to these questions:

· Why does the employer want to test this employee?

· What are the consequences for refusing to submit?

· What's the employee's status while waiting for the test results?

· How will confidentiality be protected?

· What are the consequences of a positive test?

· Will a second test be given?

· Will the employer provide you with a copy of the laboratory report?

Remember that drug tests are not 100% accurate. The EMIT test, for example, has a 95% accuracy rate-and some labs have been found to have false-positive rates as high as 66 percent!

An important decision is whether an employee should go to a physician immediately for testing and a substance abuse assessment.

If a worker tests positive and is disciplined, you should be prepared to raise a number of issues and defenses. These include a lack of probable cause (can the erratic behavior be explained - get a statement from the worker when the issue first comes up); citing deficiencies in company or lab procedures; or charging the test result to be a "false positive" due to a prescription drug, over-the-counter medication, or passive exposure.

"UE" is the abbreviation for United Electrical, Radio and Machine Workers of America, a democratic national union representing some 35,000 workers in a wide variety of manufacturing, public sector and private non-profit sector jobs. UE is an independent union (not affiliated with the AFL-CIO) proud of its democratic structure and progressive policies.

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