Positive cocaine test result

crawfod · June 2004

We had an employee who's been here 5 months who tested positive for cocaine as a result of a post-accident test. Our policy allows disciplinary action up to and including termination. The department really believes in the employee and feels, like the employee, that there must be some mistake. My years of experience has rarely, if ever, seen lab mistakes, and I've talked to employees who should be professional actors when describing their innocence, tears and all. Maybe I'm getting cynical, but I tend to believe the lab results, and to not discharge this employee will set a dangerous precedent for the next employee who doesn't have a good record or is as convincing. I do plan on speaking with the MRO asap to see what they say.

1. Anybody got any experience with actual lab mistakes for drug testing?

2. Any thoughts on what options we might take?

ray a · June 2004

Anyone can make a mistake. Our policy is immediate termination for all positive results of drug screens. A few ee's have complained that the test was not accurate, it was impossible for them to test positive - there must be some kind of mistake. When I tell them they can take another test at their expense (about $150) they have all declined. That tells me something.

Just be consistent. If you allow this person to stay, then you must do the same with the next ee who tests positive even if the dept doesn't believe as strongly in them. I share your cynicism.

Balloonman · June 2004

Yeah a mistake..........those chain of custody stickers, the forms, the screen test followed by the second test after an initial positive......
Fire them. The only mistake was hiring them. :-)
My $0.02 worth!
DJ The Balloonman

stilldazed · June 2004

I agree with the rest of the posts: let your action this time be consistent with prior positive drug results. If that has been termination in the past, then terminate now. Based on your post, you know what your next step has to be.

In nearly 3 years as HR director for my current employer, I haven't seen a mistake from our testing laboratory. Drug testing is a well established process and is filled with checks to minimize potential errors. What I have seen has been astonished faces and tears of employees who tested positive, and heard their excuses about why there must have been a mistake:
1. they "couldn't possibly have tested positive"
2. "sure it was in the room, but I didn't take it"
3. "the positive result (for marijuana) was really from the Nyquil I was taking"
4. "the drug was therapeutic advised (not prescribed) by my doctor"

I have also had the privelege of confessions after the termination that the positive test result was not a mistake and that the employee knew he/she should not have participated in the drug use.

From an HR director perspective, it is very disappointing to witness that kind of sequence of events, and probably breeds cynicism on our part. I hope your bubble about your employee doesn't burst, but your details sound a lot like lines I have heard firsthand in my office.

Be strong,

Whatever · June 2004

At one time, the union would do retesting for those ees who swore the lab was mistaken. No longer (the lab was never proven to be wrong). Discharge the ee.

dchr9203 · June 2004

Terminate. Your policy is clear and with HIPPA, chain of custody, and just standard procedure of drug testing lab providers, you can be confident there's been no mistake. If there has been, the burden is on the employee to prove it.

Don D · June 2004

I agree with the other responses. The worst possible reason of all to make such a decision is "But, he's such a good employee." He's also somebody's daddy and probably goes to church and mows his yard most Saturdays. But he's also a coke addict which violtes your policy and you have a policy for a reason. The lab did not make a mistake.

mushroomHR · June 2004

We have been doing pre-employment testing, random testing, post-accident testing, and for-cause testing for 15 years. We have never had the lab make a mistake. Don't compromise your policy--fire him.

HR in CA · June 2004

When we send an employee in for a drug screen, either post offer, accident, etc. the sample is split into two. The first sample is tested, should it be positive we are notified. I notify the employee of the results. If the employee protests, he/she is told they may have the other portion tested with a different method at their expense. If the employee's other sample is negative, we reimburse the employee the cost of the test and it's like the test was never positive. However, in my 13 years I have never had to reimburse an employee or return them to work.

Stick to your policy!

awilliams · June 2004

I agree with all the previous posts that have said that they have never seen a lab mistake - it is very rare - although you will always get a sob story from the employee. I bet we could start a huge thread on this forum about great stories we have heard from employees about why their tests were positive. Think about this: what happens if you keep this guy on, and the next accident hurts (or kills) someone and it comes out in litigation that you had a positive cocaine result for this employee, yet you ignored it? I can tell you that discharging the employee before that happens is the whole reason you have drug testing to begin with.

Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

martman99 · June 2004

I have run across this issue where there WAS a false positive. Yes, they are RARE, however, they do happen. I have also worked in a laboratory before and seen some of the laxness in performing tests. Is this a reputable lab? Contamination can happen. Did they report as a screen(qualitative) or amount(quantitative). Is it possible to repeat immediately or do serological assay for more definitive results?

Just a few thoughts to ponder

Don D · June 2004

I think you'll find very few, if any, employers who feel it is incumbent upon them to do what you suggest. We'd be meeting ourselves coming and going all day long if we jumped through all those false hoops every time we have a positive. It's like any other system in your operation...You have to have a degree of faith in it and move on. If the employee wants to go to some trouble, fine, let him, but there is very little likelihood he will be retained regardless of the outcome.

martman99 · June 2004

I think you miss my point. Obviously, there does appear to be some sentiment that they would like to retain the employee. I am replying to a specific case with specific facts. In no way would I suggest that evry employer follow this path for every positive drug "screen" result. Our policy dictates the employee can have a drug test performed at their cost within a specified time frame at THEIR OWN EXPENSE. There is no burden here!

Thanks for the cynicism, though! :-)

Marty

LarryC · June 2004

We also recently had an employee test positive for cocaine after an accident. Of course, everyone was shocked. The employee was "shocked". However, the word of the MRO is final. We are in no position to interpret or analyze drug results. Sticking to the policy is an absolute must.

Pork · June 2004

I'll bet you 100 "pig nuts" to nothing there is no mistake. However, being the good and concerned employer that you are, you could use the power of HIPAA/privacy information kept secretive and allow the employee to contest the results. You suspend the employee from work and allow him/her to go get another more sensitive hair or blood sample test at his/her own expense within the next 24 hours. Given the individual does this, you simply keep the employee out on suspension until the lab confirms the mistake. Now, presented with the facts that the original test was incorrect a mistake, you should return the suspended employee back to full duty and pay him/her for the hours missed while out on a mistaken lab report. IN my 30 years of being involved with "drug testing" not one guilty ee has come back falsely accused. If you have a policy in place this is one time that any feeling of sympathy for the poor soul must be thrown out the window. Terminate after you get the lab results final. As a drug and alcohol abuse counselor, I can advise you that most addicted persons will deny and even loose their families before they will admit to having a problem! It is the loss of one's job that ranks highest in reasons to get help. Loss of one's esteem in the world of work is the bottom of the pit and all real addicted persons reach this pit and waller in it before they climb out. Some even fall back into the pit, and some stay there until death. You may be their worst enemy the day you exercise a consistent policy which cause them to realize their personal behaviors and choices caused them loose their job!

Do what your policy says your company will do and be proud of the consistency you establish for all others to lean on!

PORK

Don D · June 2004

Maybe I'm confused, but, what's this got to do with HIPAA? And a hair sample will not pick up current cocaine use, only historic. If he hasn't snorted since his positive, the blood sample won't pick it up either.

Pork · June 2004

WAKE UP "Dandy Don"; secret stuff/condidential medical information in the halls of HR Department, no body is going to know about drug testing results thanks to HIPAA all the links to these pieces of rumor have died an instant death.

I've seen your words denying "hair and blood samples" will not be confirmed as positive on current use! I don't know about you and how fast you are able to get screening results but mine will only take minutes and if I can get my notice of suspension done within the same hour, the employee will have cocain in his system to meet the nonograms test level required of a substance for a positive result from hair and blood samples. Our 1st test is urine a screening and we work from there, we do not wait on the suspension of a record lab test result which is 3 to 5 days old before the positive result comes back. In this period the chance of catching a new drug test sample with hair or blood is probably going to be for not! You would be right, but if we are able to work from a fresh urine sample and start the 24 hour clock at that same test hour then we most certainly can catch him/her. I have had 5 contest the urine sample and all five have ended up being terminated. One paid for an got a blood sample done and he swears he did not use cocaine either before or after the urine test. The lab test that he paid for never crossed my desk, and he was terminated with no conflict. Evidently, his blood sample had cocaine in it and he just didn't bother to come back to our door to prove us wrong or right or maybe he just did not want to spend the money he did not have!

Don D · June 2004

Pork, consider this: A urinalysis is not considered a medical examination and is not subject in any way to the contraints of HIPAA. HIPAA in this context is not relevant. And a person who tests positive through urinalysis for cocaine who is allowed to retest several days later will probably NOT test positive then if he's abstained. The split sample testing that labs do today is not going to give two false positives. (Pork: send ribs, not nuts.)

Pork · June 2004

Don: The results and who it pretains to is medical information!!! Thus we will treat it as HIPAA covered. Conservative as I am, HIPAA does tie it all up nicely.

Don, did I not write that a blood sample and hair sample taken a few days later would not most likely have positive result?

Did I not write that we react to positive screen results with a suspension until the final lab test are back?

Did I not write that we give the ee "on suspension" the option of bringing in documentation of a more sensitive test than urine for an appeal with in 24 hours of the urine screen?

Did I not write that the ee that buys a hair or blood drug test can use that test as part of his appeal?

Sometimes I read you as being so "bull headed" about your expertise, that you would be a hell of an adversary on the other side of the negotiating table.

Readers take it or leave it, my way also works and does not get tied up with all the reading between the lines or the failure to do so!

PORK

Don D · June 2004

Pork: You simply must learn to admit when you are wrong. That is difficult for you. Urinalysis results are not medical tests nor medical information and are not covered by HIPAA. When you give a person the option of submitting the results of a hair test within 24 hours, you are giving up the ship, but that is your right to do. If you check with your clinic you will learn that a hair sample analyzed for drug usage gives historical information only, not current usage. If a guy got high on marijuana or cocaine last nite and he has a hair sample analysis today, it will never show positive unless he historically has used the drug. I am not trying to be bull headed here, just trying to educate you, which you always resist due to your age and personal bullheadedness. I will never cease to learn and benefit from the advice and knowledge of others. You would do well to consider the same.

You are simply just as wrong here as you are about your personal crusade to impose your agenda on people whom you think to be illegals who have previously shown you acceptable records. I hope you can retire before you get your ass nailed to the wall. Otherwise, I always enjoy your input and your observations and experience. x:-)

twochr · July 2004

Don, you are absolutely correct about drug testing not being covered under HIPAA. We just went thru extensive training by our outside attorneys. We were very surprised to learn that only information that is received from or by, or is sent to a medical provider is covered - Like EOBs, medical claims reports that list patients and their illnesses, etc. Drug testing is specifically excluded because it is an employment related situation - and employment related situations are not protected information under HIPAA.

RLnewbie · June 2004

We had a similar situation in our company.

We are in the construction feild and explained that we could not allow him back on the job site as this would put his entire crew (not to mention the company!)at risk. Of course he claimed it was the sinus medication that skewed the test.

Normally we would just terminate him and mark him as not eligable for rehire. But prior to this his performance was great and his supervisor hated to have to let him go. For situations like this we have a provision in our drug policy stating that the employee can be rehired IF he will go through rehabilitiation (at his own expense) and once there is documentation that he has successfully completed rehab he is eligable for re-hire at the discretion of management and availability of work, but would be subject to random and frequent drug testing for his first year after rehab.

Haven't heard from him since!

We are in the process of re writing our drug policy because much of it is too vague. And I didn't like this clause because I felt it opened the door for an ex employee to cry favoritism since I am not sure that this has been offered to every employee that was terminated for a positive drug test. ( have been with the company less than a year).

System · June 2004

[font size="1" color="#FF0000"]LAST EDITED ON 06-29-04 AT 06:54AM (CST)[/font][br][br]Crawford, since you are a local government, I'm supposing that your post-accident testing is covered under D.O.T. If so, you are required to allow the employee to re-test at his/her own expense. They have up to 10 days to request a re-test. No. They DO NOT provide an new sample. The original sample was split into 'Bottle A' and 'Bottle B.' Once you offer the employee the right to re-test and explain that you will be using the same sample (Bottle

, I'll bet you my next paycheck he'll decline. The MRO will also contact the employee for an interview and explain his right to re-test. In the meantime, suspend him without pay pending termination. Whatever you do, don't cave just because he's a good employee. Lots of 'good' people do cocaine.

Oh, you may not be tempted by my next paycheck.

CarrieMP · June 2004

I have actually had experience with false positives, although they are rare. What I have always seen in companies who do drug test (we don't currently) is: Company pays for 1st test, if it comes out positive and the ee wants another test it is allowed at the employees expense, however if the test comes back negative, the employee is reimbursed for the cost of the test, a positive result results in the employee footing the bill. While false positives are rare, I do beleive in giving employees the benefit of the doubt (although maybe I just naive, I am farely new to HR...2 years).

Good Luck!
Carrie

Don D · June 2004

[font size="1" color="#FF0000"]LAST EDITED ON 06-29-04 AT 10:05AM (CST)[/font][br][br]Actually, Carrie, you're skipping a test in your comment. A specimen is split into two samples and if the first one tests positive, the second test is conducted on the other part of the sample. That's two tests. If both are positive, it is ruled positive and reported that way, usually to an MRO, who investigates the possibility of some prescription being involved. Absent that, the positive is reported to the employer and/or individual concerned. It is a bit naive to rule in favor of the employee in something this critical to the safety of business. You may want to ask the service you use to tell you the percentage of false positives they have experienced, over time. It is almost non-existent and testing and results have withstood court challenge all over the country. It's like police radar or properly calibrated breath alcohol test equipment.

MOMANUFACTURER · June 2004

We had one case where the lab gave us the results backwards. Told us EE A was positive and B was negative and that was incorrect. When EE A stated that it could not have come back positive we had the lab look and they found their mistake. That is the only time we have had a problem. If an employee tests positive they also have the option of a second test at their own expense. Funny how none of them come back to get reimbursed or their job.

KD13 · June 2004

I believe it has been fully covered by everyone and the man should be terminated. I will offer one thing. Our policy states if an ee has less than one year senority and fails a drug/alcohol test, they are terminated period, no questions asked. If ee senority is over 1 one year, they have the option of rehab, at their expense, or termination. I, as well, have been in H.R. for 11 years and have yet to see a incorrect drug test.

KathiHR · June 2004

In my life prior to HR, I was a medical technologist & technical manager for a national laboratory. Drug testing was the "bread" of our "bread & butter" (lots of DOTs.) No matter how much employees "protesteth", I never once saw a drug test come back "wrong." And of the few cases that went to court, we never lost. Its not that mistakes can't happen, they can. That's the point of all the quality control, double checks, chain of custody, etc.

What I'm more curious about now......the results of a urinanalysis not covered under HIPAA?

Don D · June 2004

That's my understanding. It has long been true that a urinalysis, by definition, is not a medical test. So how could the results be considered medical information? And if not medical information, how could it be covered by HIPAA? Show me the error of my ways if I'm wrong. I certainly need to know if I am.

Pork · June 2004

[font size="1" color="#FF0000"]LAST EDITED ON 06-30-04 AT 05:44PM (CST)[/font][br][br]Don: I'll take one more shot at your posting.

WHAT DOES HIPAA REQUIRE?
>Prevent unauthorized uses and disclosures of member's protected health information.
>Members rights.
>Internal administrative requirements.

OK, WHAT IS PROTECTED HEALTH INFORMATION?
>OR WHAT IS PHI?
>Health information subject to PRIVACY AND SECURITY protections under State and Federal Laws.
>Individual Indentifiable Health Information that is maintained or transmitted in ANY FORM.

This comes from HIPAA as presented in my most recent traning program, as required training under the law. Even the specific fact that my training has been conducted with me is HIPAA required information.

Therefore the name, ssn, date of a medical exam ie., the urine, blood, or hair taken from my body for a physical exam of my personal chemcial make-up is private and confidential information. As a result this then falls under my private health information which is protected medical information by privacy laws. Thus it can be logically considered as maintained and transmitted in ANY FORM.

Have a nice day!

"Dandy PORK"

Don D · June 2004

[font size="1" color="#FF0000"]LAST EDITED ON 06-30-04 AT 06:57PM (CST)[/font][br][br]The answer is found in the seventh word of your introductory sentence, "Members". HIPAA governs plans. Pre-employment urinalysis doesn't fall under a 'plan'. If it did, the results would not be reported back to the employer by a lab or clinic; they could only be reported to the patient.

Unless the analysis of the specimin is expanded to a broader panel than the 5 or 7 panel illicit drug detection series, there is no medical invasion or information determined. If, however, the urinalysis includes medical tests for such conditions as aids, diabetis, or high cholesterol, or to make other medical diagnoses, that would be a medical test. The detection of illegal drugs is not a medical condition. Urinalysis for the strict purpose of determining illegal drug consumption is not a 'medical procedure'. For more definitive proof, consider the fact that you are not required to maintain urinalysis drug test results in the separate medical file, nor does the D.O.T., the nation's most widely mandated drug detection regulation, consider them medical procedures. If you've ever been through a major D.O.T. audit, you know this.

Nobody should base their understanding of this on what you heard in a seminar or what you overheard a phlebotomist say.

Positive cocaine test result

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