A friend of mine in Texas has been informed by her employer that she must submit to periodic drug testing or lose her job.
The issue here is that the employer has specified (in a document she is required to sign) that the sample will be collected by her employer and will be tested by whatever means they see fit. (errors considered a fail, etc).
The issue is not fear of taking the test, or even an objection to being tested. My friend is certainly clean.
The problem is failing to trust the employers to handle the tests ethically.
Her employers are a rather slimy lot. Certainly not above claiming that an employee who failed to please them in some way “failed” a test in order to terminate them “with cause” so as to avoid unemployment claims. Worse, such doctored test results would stain such an ex-employee’s career in such a way as to make them unemployable thereafter.
It seems to me that requiring the employee to let the employer gather and perform the test in whatever (unspecified) way that they want is going too far.
I found out about this only today, and her employer will certainly confront her on Monday.
Is there an actual legal issue here (and therefore should she seek legal counsel)? Or should my friend just say “no” and start looking for another job.
I don’t have any specific knowledge of Texas’ unemployment issues but I would think that a positive on a mickey mouse drug test would not constitute cause. The “any manner we see fit” clause seems to be pretty standard boiler plate. If she has issues perhaps she could negotiate that to read “by a competent 3rd party”.
Unknown, but since the employee is also required to pay for the test, it would seem unfair to not allow her to choose do so. I would not, however, put it past her employers to charge her $100 for a $5.99 do it yourself test.
“No company should begin drug testing until it has found and engaged a reliable drug-testing lab that will be willing to cooperate with the employer in the event that a lawsuit or claim arises from the test. No lab should be used unless it agrees in writing to routinely provide the company with copies of the test results, showing which tests were performed, what substances were found, and in what amounts (either specific concentrations or an indication of what the cut-off levels for a positive result were). It should also furnish a copy of the complete chain of custody of the urine, hair, or blood sample showing who handled the sample at various times in the testing process. Employers that fail to present those types of documentation in response to an unemployment claim will lose the UI claim.”
Under the section about unemployment claims;
“documentation to establish that the chain of custody of the claimant’s sample was maintained;”
Bottom line, if the company collects the sample, they’re at risk over the idea of ‘establishing a chain of custody’. If they collect it and leave it unattended for even a brief moment, the chain of custody is broken and you have grounds for claiming unemployment. Doesn’t mean you keep your job, but at least allows you to claim unemployment where you otherwise would not be able to.
The actual legal issue is that the employee must pay for the test. They can’t require that. At least, in Colorado they can’t; I don’t know about Texas.
Seems to me that if you think your employer is likely to try to rip you off, you should be looking for a new job anyway. (Easier said than done these days, I know.)
I believe she’s in a holding action trying to pay the bills until she can finish her training, get licensed, and get out from under the thumb of this particular employer.
Thanks to everyone for the information. I’ve passed it on to her.