Drug Testing Employees In-House: Taking Back The Reins

Many employers are coming to understand the benefits of drug testing employees with in-house drug testing. Going to third parties for drug and alcohol testing is often unnecessarily time-consuming, risky, and expensive. Third party testing can be the cause of delays which ultimately negatively affects the performance of the organization and may leave it in violation of applicable regulations. As a result, many employers have turned to training payroll employees to conduct in-house tests instead, improving operations and securing compliance.

Which Types of Employee Drug Tests are Available for In-House Testing Programs?

Businesses and organizations must ensure that their employees are drug-free to maintain safety standards, improve efficiency, decrease absenteeism, increase morale, and overall productivity in the workplace. Workers under the influence of illicit or recreational substances are a hazard both to themselves and their colleagues as drugs and alcohol can severely impair necessary motor functions, reaction time, vision, balance, and judgment, among other limiting effects.

To identify drug and alcohol use and abuse in the workplace, employers have a battery of testing methods available to them depending on the applicable state and federal laws and detection window preferred. The most common and proven methods for drug testing include urine, saliva (also known as “Oral Fluid”), hair, and blood. Blood is considered more intrusive than the other methods, but research suggests it may indicate more accurately the level of impairment of the employee at the time of the test with saliva/oral fluid, considered to be one of the least intrusive methods, coming in a very close second. Thus, the detection windows of substances start with blood as the closest to actual impairment, followed by saliva (as soon as 30 minutes after ingestion to 24 hours for most, about 72 hours with consistent users), then urine (as soon as about 4 hours to a week for most, about 30 days with consistent users), followed by hair (as soon as about 48 hours to about 90 days for most, but longer periods are possible with longer hair strands).

Alcohol is most commonly tested using breath through an evidential breath testing device (EBT Device); however, other devices are used to conduct screening which use either breath or saliva. Law enforcement and certain safety-sensitive agencies, such as the Federal Railroad Administration, utilize blood for alcohol tests but only do so in certain limited circumstances. Since alcohol is a volatile substance, it metabolizes quickly and any workplace alcohol test must be conducted as soon as possible but never longer than 8 hours. Some organizations still use urine as a method of testing for alcohol through Ethyl Glucuronide (also known as “EtG”); however, there are concerns over false positives and reliability so its popularity has dwindled over the years in workplace testing environments in favor of the more reliable breath test.

What are the Benefits of In-House Employee Drug Testing? 

The benefits of in-house employee drug testing are wide-ranging.

Efficiency

Allowing employees on payroll (from different departments, rather than the direct supervisor of an employee) to conduct drug and alcohol tests improves efficiency. When a worker has a qualifying accident, for example, trained in-house technicians, such as the on-site safety officer, can immediately administer a test, thus removing the delay associated with using third-party collection sites or mobile collectors. In this scenario, there is no need to send an employee to an off-site testing facility or wait for a technician from the testing agency to administer the test.

Productivity benefits enormously from this an in-house testing program, as well. Employees can return to work almost immediately following a negative test result, without the usual delays. Time is money, so the sooner an employee is back to work, the better.

Reduce Risks

When employers hand over responsibility for drug and alcohol testing to a third-party they immediately incur a host of additional risks.

For instance, driving an employee to a test site involves the danger of having an accident along the way. Furthermore, the testing site may not be following the appropriate chain of custody protocols that comply with state and federal regulations. To mitigate this risk, employers can and should conduct an audit of the laboratory itself, but without the necessary training, employers and their auditors would not know what exactly to look for, immediately putting them at a disadvantage.

The failure to follow drug and alcohol testing procedures to the letter of the law may invalidate the results and invite future legal liabilities. Workers, for instance, could sue the employer on the grounds of discrimination or for an unwarranted intrusion upon their protected privacy interests. While this risk will never be fully eliminated, moving a testing program in-house allows for more control over the procedure including verification of training records, monitoring of collection and testing practices, and the immediate discovery and remediation of flaws in the procedure.

Avoid Canceled Tests Due to Timeout

While some substances and their metabolites remain in the human body for a long time, many will go undetected in a test rather quickly after ingestion. Alcohol, for instance, is processed by the liver at a predictable rate and will altogether leave the system after about eight hours.

Thus, when it comes to testing for potential breaches of a company substance abuse policy, time is of the essence.

Outsourcing drug testing to a third party involves immediately apparent problems. In the event of an accident, there may be delays in getting a technician to the job site or getting the employee to the nearest open testing site which may be miles away. Employers should consider whether there would be any testing site or mobile technician available in the event of an accident after-hours. Even if there is a location available, how much is the after-hours fee? One after-hours fee could end up costing more than the price of enrolling an in-house employee in a drug testing training program. If a test can’t be completed within a certain set time frame then it must be canceled due to timeout. Such a canceled test can have real ramifications for an employer’s ability to fulfill its duty of care to its employees. For example, alcohol testing under federal regulations requires that a test be canceled if the employee can’t be tested within eight hours. If that employee whose test was canceled would have tested positive, the employer has just lost its opportunity to identify an at-risk employee and refer them for appropriate treatment but now will put the employee back to work and potentially putting other workers in danger again.

How do Employers Bring Employee Drug & Alcohol Testing In-House?

Employers cannot defensibly begin drug and alcohol testing in-house without the appropriate training. In most cases, even nurses and other healthcare professionals are not qualified by virtue of their license alone to begin drug or alcohol testing for an employer. There are few limitations on who can conduct in-house testing and there are no general pre-requisites such as a high school diploma or GED. However, employees working on the same pay-grade in the same workgroup may not test each other, and in most jurisdictions, direct supervisors are only allowed to conduct drug tests in dire circumstances or are outright prohibited from testing their subordinates altogether. Therefore, the most common positions designated for managing testing programs include human resources personnel, safety officers and managers, and on-site nurses.

The courses these individuals need to be enrolled in a range based on the type regulations the testing program is subject to and the testing modes authorized under the drug-free workplace program. The person-in-charge of the in-house testing program should be enrolled in the Designated Employer Representative course(s) applicable to the organization. For example, a safety officer for a township with a drug-free workplace policy regulated by the FMCSA and FTA as well as a company policy subject to Florida law would take the FMCSA DER Course, the FTA DER Course, and the Non-DOT DER Course including the Florida Workplace Testing Laws Course.

Next, the individuals conducting the tests should be trained on the appropriate protocols for testing. An organization regulated by a DOT subagency such as the FMCSA would need to have collectors trained in DOT Urine Specimen Collection as well as technicians trained as DOT Breath Alcohol Technicians. An employer who is not federally-regulated and has urine and saliva as testing modalities would take the Non-DOT Urine Specimen Collector Course and the Saliva/Oral Fluid Specimen Collector Course.

Several factors come into play when considering which courses are appropriate to take to move a testing program wholly or partially in-house. These include:

  1. Whether the organization is federally-regulated (i.e. DOT, Non-DOT, or both)
  2. Whether the state law authorizes multiple testing methods (i.e. the state only authorizes urine tests and will not recognize hair or saliva as a valid workplace testing method)
  3. Whether the company/organization drug-free workplace policy authorizes the testing method (i.e. the policy only authorizes urine as a valid drug testing method and would need to be amended to include saliva if that was preferred).

In answering these questions and determining whether to move a testing program in-house, it is recommended that employers seek the advice of an attorney experienced in drug and alcohol testing policies and procedures. Also, the aforementioned DER and state workplace testing law courses may provide valuable insight into how to structure and manage an in-house testing program.



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