- April 11, 2020
- Posted by: Andrew Easler
- Category: Drug Testing News
Employers should always follow their drug-free workplace procedures; however, sometimes steps slip through the cracks causing critical issues down the line. Missing a step in a drug testing procedure can create devastating results because the mistake can put at risk an employee’s livelihood.
In Stueart v. Arkansas State Police Commission, a police officer was discharged after a procedural error occurred during his urine specimen collection for drug testing. Thomas B. Stueart was a police officer in the Arkansas police force and was required to submit to random drug testing per General Order No. 104, an order which established a drug-free workplace policy pursuant to the Drug Free Workplace Act of 1988. After Stueart’s drug test results indicated positive for THC, the psychoactive component of marijuana, the supervisor of the toxicology lab informed the Arkansas Police Department who subsequently discharged Stueart. Stueart appealed to the Arkansas State Police Commission (“the Commission”) where his discharge was affirmed. Stueart appealed once more to the Pulaski Circuit Court which upheld the Commission’s decision.
The Arkansas Police Department’s drug testing policy included a chain of custody form to be filled out with every collection and required positive initial and confirmatory results to be reviewed by a Medical Review Officer(“MRO”). The policy mandates that a positive test result shall only be reported when both the initial and confirmatory tests have been completed and when the positive result is not adequately explained to the satisfaction of the Medical Review Officer by consultation with the employee or the employee’s physician. There were initially two issues with Stueart’s specimen collection: (i) the chain of custody form used for the collection lacked Stueart’s signature; and (ii) despite the procedural requirement for MRO review of positive confirmatory results before reporting a positive test result, the procedure implemented with Stueart omitted the MRO altogether.
The court established that, although Stueart did not sign the donor certification on the chain of custody form, he was able to testify that he produced a specimen to test and, based on his testimony and affidavit, this issue was cured. Even so, the State Police Commission failed to follow its own procedural rules regarding the second issue of MRO review. The court held that the Arkansas State Police Commission admitted to failing to follow its procedures and therefore deprived Stueart a substantial right to due process in the taking of his substantial interest in continued employment. The court stated “[Stueart] was deprived of the opportunity for an expert to determine whether there might be another explanation, besides marijuana use, for the positive result. Unlike the flaws in the chain of custody, this breach cannot be cured with affidavits and testimony.” The Commission argued that the review by the MRO was irrelevant; however, the court disagreed and held “the Commission’s failure to follow its own rules prejudiced the same substantial rights that the rules were promulgated to protect, and that this failure requires that we reverse the decision of the Commission to terminate Stueart.”
This case outlines potential problems employers may encounter when failing to properly train its employees and follow protocols. Fortunately, in this case testimony was able to be provided to confirm the chain of custody for the employee’s specimen, despite the fact that the initial collection was flawed because the collector failed to acquire Stueart’s signature. If testimony was not available to cure this critical error, it is possible that the results would have been inadmissible and the employee likely would have succeeded on that point alone. Preventing this type of error in collection procedure requires thorough and frequent training and compliance monitoring in either federal or state collection procedures.
The second issue could have also been prevented by the Police Commission by providing proper training to its employees. Initially, the toxicology supervisor provided the results to the Arkansas Police Department’s Designated Employer Representative (DER) instead of the MRO. Had the toxicology supervisor been trained that the results needed to first go to the MRO, even in the event of a positive Marijuana result, the issue may never have arisen. Alternatively had the DER been properly trained the DER likely would have noticed the lack of MRO review, forwarded the report to the MRO, corrected the laboratory’s procedure, and awaited the final report from the MRO before taking any adverse employment action. This likely would have prevented the fatal error and provided the employee with adequate Due Process in his termination and prevented costly litigation and appeals.
 See Stueart v. Arkansas State Police Comm., 945 S.W.2d 378 (Ark. 1997).  Id.  Id.  Id.  See Stuart, 945 S.W.2d at 379.  Id.  Id. at 379-380.  Stuart, 945 S.W.2d at 380.  Id.  Id. at 381.  Training for urine collection protocols for drug testing is commonly referred to as either “Non-DOT Urine Specimen Collector” courses or “DOT Urine Specimen Collector” courses in reference to whether the drug test is subject to the regulatory provisions of 49 C.F.R. Part 40, United States Department of Transportation protocols for transportation-related workplace testing programs for public and private employers. A more thorough explanation of the differences can be found here: https://youtu.be/amJvW-01epw  DER is a term used in “DOT” testing programs to refer to the individual generally responsible for making important determinations regarding drug and alcohol testing policies and procedures. This individual should be intimately familiar with applicable federal, state, and local laws as well as the company drug-free workplace policy and any applicable collective bargaining agreements. Another common term for this individual is “Drug and Alcohol Program Manager” or “DAPM.” Training is available for DERs by DOT sub-agency and for Non-DOT testing programs.