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Drug and 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.
- 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
Bill Gropper was a little mad when the plant Human Relations Director approached him and said, "Bill, I just want to let the Union know that we intend to put into place a drug testing program for all employees."
"We just finished negotiations last year, if you wanted to discuss it you should have brought it up then," said Joe.
"We're concerned for the health and safety of our employees and we feel we're within our rights to implement it now," said the boss.
Drug testing is a big issue. In this scenario, the Union has to deal with several questions at once.
- Can the Company implement a change of this nature mid-contract?
- Does the Company have to bargain with the Union over drug testing?
- Will filing a grievance over the drug testing plan be enough?
- Can the Union "just say no" or will they have to bargain over the drug testing plan?
- If the Union has to bargain, what kind of D&A policy should be fought for?
Under the guise of concern for 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 lay off employees, close factories or threaten to close them, demand wage cuts, subcontract or privatize, and find dozens of other ways to make workers lives miserable, 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.
Who's in a "Safety
The only jobs where drug
testing is legally required
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 (DOT).
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.
|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|
|Mass Transit||Operators, Dispatchers, Maintenance|
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.
|Please note: these numbers have been known to change. If they're in error, search the U.S. Dept. of Transportation's website for "Office of Drug & Alcohol Policy & Compliance"|
|Federal Aviation Administration||202-267-8442|
|Federal Motor Carrier Safety Administration||202-366-2096|
|Federal Railroad Administration||202-493-6313|
|Federal Transit Administration||617-494-2395|
|Pipeline & Hazardous Materials Safety Administration||202-366-2350|
Keep in mind that, without drug and alcohol testing, employers already have the right to discipline for just cause, and being drunk or high on the job counts as just cause. 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.
So let's look at the questions that Bill and the Union have to deal with.
1. Can the company implement a change of this kind mid-contract?
The basic answer is no. The employer does not have the right to unilaterally make a change of this large nature in the working conditions of employees. but, as with all mid-contract bargaining It is up to the union to make the demand that the employer bargain with the union over the issue.
2. Does the Company have to bargain with the Union over drug testing?
The answer is yes, if the Union makes the demand on the employer after the Union is notified by the employer that it wants to implement a new policy.
The General Counsel of National Labor Relations Board issued the following ruling in 1987, as Memorandum GC87-5, "Guideline Memorandum Concerning Drug or Alcohol Testing of Employees," which says in part:
In brief it is my position that:
- drug testing for current employees and job applicants is a mandatory subject of bargaining under Section 8(d) of the Act;
- in general, implementation of a drug testing program is a substantial change in working conditions, even where physical examinations previously have been given, and even if established work rules preclude the use or possession of drugs in the plant;
- the established Board policy that a union's waiver of its bargaining rights must be clear and unmistakable is to be applied to drug testing
Many employers like to point to the management rights clause that says they have the right to run the business or the agency, and claim that this means the Union has given up it's rights to bargain over issues like drug and alcohol testing. The NLRB says that the Union gives up its rights under the management rights clause ONLY if it is clear and unmistakable, that the Union is giving up its right to bargain over an exact issue. For example here is language that is clear and unmistakable that the Union is giving up its rights to bargain over a drug and alcohol policy: "The Union agrees to allow management to implement any kind of drug and alcohol testing program that it wants to, when ever it wants to. "
3. Will filing a grievance over the drug testing plan be enough?
The answer is no. Filing a grievance is not the same as demanding your right to bargain. In this situation the Union must put in writing its demand to bargain.
"UE Local 946 demands that the employer enter into negotiations with the Union over its proposed drug and alcohol testing program, and the employer must immediately stop any drug and alcohol testing of union employees that it may have started."
In a twisted sense of logic, the NLRB has ruled that just filing a grievance against an employer in this situation is not the same as demanding bargaining and therefore an employer could implement the program absent any demand from the Union to bargain!
4. Can the Union "just say no" or will they have to bargain over the drug testing plan?
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, and false-positive results are very possible. The EMIT test, for example, has been shown to have a substantial number of false-positive results and the accuracy can also vary by testing-facility.
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.
In years past, the position of the Union was that we didn't negotiate employer rules. We would grieve unjust discipline under the "Just Cause" clause of the contract.
In the case of an employer wanting to implement a drug and alcohol testing program, just saying "No!" won't do. The union will then end up with a policy that is bad for its members and having not exercised our option to bargain, we will have a weaker position at an arbitration hearing over whether the firing of an employee was justified.
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 punish and subject the majority to testing if only a few people may have problems?" 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.
Demanding Information from the Employer
Employers like mid-contract bargaining because they feel the workers are at a disadvantage, compared to normal negotiations. In these situations the Union must use every tool at our disposal. One tool is our right to demand information from the employer concerning why they want to implement a drug and alcohol testing program.
The University of Iowa Labor Center has compiled a 17-page questionnaire and demand for information that unions can use when their employer starts to implement a drug and alcohol testing program. Here are some of the broad categories that the demand for information covers:
- Demanding exact information as to the employer's knowledge of any alleged drug or alcohol use in the workplace.
- If the employer claims drug and alcohol usage affects attendance, productivity, the employer's image, or employee accidents, then the employer must reveal all information they have to back this up including every study they have used to back up this claim. This could include all data about every accident that happened over the course of years.
- Information can be demanded concerning the economic impact this testing will have on the employer, or training and knowledge that supervisors have or will get to make them experts in spotting drug or alcohol abuse. Information can be requested concerning how management will ensure that all information will be kept confidential, and how the hospital or testing agency will guarantee the confidentiality of information.
Then there is a whole series of questions on how the employer can prove the tests they will use are accurate. We don't just accept their word but want to see every scientific study in its entirety on the accuracy of each test.
The entire set of questions is available on the UI Labor Center's website. The article is called Workplace Drug Testing: Employer Has the Duty to Provide Information For Bargaining; a pdf version is also available.
It can also be obtained from the UE Education Department.
5. If the Union has to bargain, what kind of D&A policy should be fought for?
Here are some of the basic items and protections 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 should 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. NO automatic testing because of absence from work, an accident, being rude to a boss or low production. 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. There have been many cases where the employer says that the purpose of testing is to stop ANY usage of illegal drugs, on the job or off the job. While the Union does not condone the usage 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 the 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 and for weeks in the past. If urine testing is agreed to, then the levels of alcohol or other drugs present in the body 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 usage, as does saliva testing for marijuana usage.
- 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 is primary, not punishment. 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 to attend a rehabilitation clinic. While at the clinic the employee should receive sickness and accident pay. The D&A policy must recognize that these illnesses are hard to cure and therefore termination can only come after a series of failures of tests.
Does the ADA (American with Disabilities Act) cover alcoholism or addiction?
Under the ADA (Americans with Disabilities Act), 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 consideration as a disability.