Source

“Drug testing was originally designed to test for illegal drugs.   In 1987 Minnesota legislators enacted a law that would prohibit companies from taking action against employees that tested positive for legal or perscribed substances.   This law allowed football players Kevin William and Pat Williams to continue to play football with the Vikings.   They tested positive for bumetanide which is  a diueretic used for weight control.    As as a side affect it can possible mask steriod use.   Shouldn’t the burden be on the lab?  If bumetanide can tamper with results from the test then the testing procedure needs to be improved.   This abuse is what the Minnesota law was designed to protect.”

If Brett Favre decides to buy that condominium in Edina and move to Minnesota to play quarterback for the Vikings, he may be legally entitled to block the National Football League (NFL) from testing him for steroids and other drugs under the NFL’s current policy.

That is the potential consequence of a recent ruling by Judge Gary Larson in Hennepin County District Court in which he ruled that the NFL was temporarily restrained from suspending Vikings defensive tackles Kevin Williams and Pat Williams for testing positive for bumetanide, a diuretic which may mask the presence of steroids.

Judge Larson based his ruling on a unique Minnesota law passed in 1987 known as the Drug and Alcohol Testing in the Workplace Act (DATWA), as well as another Minnesota statute, the Lawful Consumable Products Act, which prohibits employers from taking adverse action based on an employee’s use of lawful products, such as alcohol or nicotine, so long as it is off hours on the worker’s own time. As the Vikings, Twins and other sports teams wrestle with the use of performance-improving drugs, Larson’s decision also highlights the need for all employers to be wary of drug-testing employees in Minnesota and for the Legislature to reform defects in the law.

The workplace act is probably the most complex drug-testing law in the country and creates a briar patch of liability for unsuspecting employers. The law permits drug testing only in limited circumstances, such as:

• When the subject is a job applicant.

• As part of a routine physical examination no more than once a year.

• On a random basis only for “safety-sensitive” positions (or professional athletes).

• When the employer has “reasonable suspicion,” for example after an accident or injury.

• Following the employee’s participation in a treatment program.

Source

“Testers need to be more sensitive to people’s medical issues and not automatically assume that just because someone can’t pee  doesn’t necessarily mean they are trying to be deceptive.   Such situations should first  be treated as a medical issue not as an unwillingness to take the test.”

Employers who do substance abuse testing need to be comfortable talking about employee body parts and, well, liquid waste.

Nearly all employment-related drug testing is done using a urine specimen, generally with the types of tests that courts have called the “gold standard.”  Different testing techniques on other sample types always are being developed and studied, but urine still comprises a gigantic share of the testing specimen market. Because accuracy is so important (after all, jobs are at stake), it is crucial for tests to be accurate, and collecting the data to prove that can take time.

When urine testing took hold in the workplace, something called paruresis wasn’t far behind. Paruresis, commonly referred to as “shy bladder,” is a phobia that causes urinary retention. While it’s a real condition, it can also be faked at the time of a drug test.

The federal government doesn’t mind talking about urine, and because the government is also one of the largest initiators of urine testing through the massive U.S. Departmment of Transportation transportation testing program, the government gets to talk about shy bladders a lot. The DOT even wrote a regulation about how to handle the situation (drink a lot of water, wait for nature to take its course, and if it doesn’t happen, give the employee five days to get an evaluation from a licensed physician who has expertise in the medical issues raised by the employee’s failure to provide a sufficient specimen). That doesn’t end the testing for the employee, however, because lots of things that come from the body can be tested for drugs, including blood.

Because real paruresis (as compared to faked paruresis) is a medical condition that can substantially limit major life activity, it isn’t surprising that employees have identified the condition as a disability and have requested accommodation such as being exempted from mandatory drug testing. Employers who test under private policies (not the DOT regulations) need to keep that issue in mind. The Americans with Disabilities Act requires employers to provide reasonable accommodations.

If an employee really cannot provide a urine specimen on demand for a required drug test, and really has a provable medical condition, the employer may be required to test something other than urine. Foregoing the test isn’t a reasonable accommodation, but doing the test differently with a different specimen may be. Smart employers will require employees to come forward and request an accommodation as soon as they know about the condition, though.

Otherwise there’s just too much scrambling at the time of the test. Accommodations such as finding an alternate way to test will work better if they are reasoned and planned in advance.

On July 7, the Middle District of Tennessee issued an opinion in a lawsuit filed by a bus driver demoted because of the DOT’s testing regulations. As a bus driver, the plaintiff was required to submit to testing under the DOT program. He had a “shy bladder” episode but the medical professionals reviewing the test refused to accept the explanation and coded his test as a “refusal to test.”  His urologist had a different opinion, but the employer adopted the “refusal to test” and refused the employee’s offer to submit to alternative means of testing, and demoted him.

The employee sued, claiming he had a disability and that the employer had failed to accommodate the disability. The case is in the early stages, but the court just denied the employer’s motion for summary judgment, stating that it was possible that the employee could prove a set of facts that could entitle him to relief on his federal disability discrimination claim. 

That seems, on its face, to conflict with a “savings clause” in the Americans with Disabilities Act, which provides that the ADA is not intended to interfere with the DOT testing program. Employers subject to the DOT testing rules, however, need to remember that the rules are specific as to testing requirements and specific as to when an employer must remove an employee from certain job functions What they do not tell a company is how to run its businesses and whether to discipline an employee. There is still plenty of room for the ADA to operate, even when DOT testing is in play.