Chapter 12 Drug Testing
INTRODUCTION
FEDERAL: DRUG-FREE WORKPLACE
NEVADA STATE EMPLOYEE PROGRAM & CONFIDENTIALITY
MISCELLANEOUS CRIMINAL ACTS – TESTING
Traffic
Firearms
DRUG TESTING IN THE PRIVATE SECTOR
CONCLUSION
INTRODUCTION
Drug testing, as a condition of employment, is a growing trend in both the government and the private sector. Testing for the presence of alcohol or controlled substances, for those individuals suspected of traffic violations, has long been an accepted procedure. Physicians, health care facilities and medical laboratories play a limited, but often critical role, in the drug screening process. Physicians should be aware of both the federal and Nevada state policies concerning drug testing or screening, and should take care not to violate rules concerning patient consent and medical record confidentiality.
FEDERAL: DRUG-FREE WORKPLACE
Under Title 41, Chapter 10 of the U.S. Code, the federal government takes an active role in the development and maintaining of drug-free work environments for American workers. Under the Drug-free Workplace Acts, 41 U.S.C. 701 et seq, the federal government mandates that [n]o person, other than an individual, shall be considered a responsible source,… for the purposes of being awarded a contract for the procurement of any property or services of a value greater than the simplified acquisition threshold, … other than a contract for procurement of commercial items, … unless such person agrees to provide a drug-free workplace …. 41 U.S.C. 701(a)(1). This statute, in conjunction with 41 U.S.C. 702 (federal grant programs), requires that contractors doing business with, or receiving funds from, the federal government, have an active program to provide a drug-free work environment. The Act does not specifically require drug testing of employees or potential employees. Instead, the emphasis is on awareness and notification to the employee of the consequences of drug and/or alcohol abuse. The requirements imposed by the federal government are essentially the same for individuals doing business with the government as it is for corporations or other entities.
The Drug-free Workplace Act has little to do with physicians in any state. The emphasis is on organizations doing business on a scale of hundreds of thousands of dollars (usually), largely procurement of goods and services other than commercial items. The act does not require physicians to perform any act or test, does not cover most physicians businesses, and does not apply to those receiving Medicare payments.
NEVADA STATE EMPLOYEE PROGRAM & CONFIDENTIALITY
Nevada has a program designed specifically for employees working for the state. A subsection of Chapter 284 of the Nevada Code, State Personnel System, deals with screening tests for state employees suspected of consuming alcohol or controlled substances while on duty, and the disciplinary actions that may result from such consumption. Under 284.4061, screening tests are those breath or blood tests to detect alcohol, or urine tests to detect the presence of controlled substances. NRS 284.4061. The statutes detail the following: the general provisions and procedures for ordering a drug & alcohol screening (NRS 284.4065); the circumstances under which applicants for state positions may be requested to submit to drug testing (NRS 284.4066); the administrative procedures for conducting the testing (e.g. testing must be conducted by labs certified by the Department of Health & Human Services)(NRS 284.4067); the confidentiality of the test results (NRS 284.4068); and, the grounds for disciplinary action (NRS 284.4062 & 284.4063).
Of particular importance is NRS 284.4068. Results of drug screenings/tests MUST NOT be disclosed to third parties, except:
- with written consent of the individual tested;
- to medical personnel charged with the diagnosis and treatment of the individual, if he or she is unable to give consent;
- in response to a properly issued subpoena;
- when relevant to a dispute between the authority ordering the testing and the individual;
- as required for an administration of an employee benefits plan.
NRS 284.4068(3).
If a physician happens to be involved in the drug screening, he or she must pay careful attention not to violate the confidentiality privacy of the individual tested, without due cause as defined by the statute. Under NRS 629.065, health care officials, to include physicians, must make the medical records of a patient suspected of operating a vehicle or vessel while under the influence of intoxicating liquor or a controlled substance available to law enforcement personnel for inspection. The statute states [t]o the extent possible, the provider of health care shall limit the inspection to the portions of the record which pertain to the presence of alcohol or a controlled substance …. NRS 629.065(1)(b). Although the statute protects health care officials from civil liability for complying with the statute, care should be taken to protect that portion of the patients record not applicable to the ongoing investigation.
Another source of concern with regard to confidentiality and drug testing is in the case of a minor. As discussed in the chapter on consent, a minor under the influence of drugs or alcohol can give express consent to treatment if they meet certain criteria. If the minor is unable, due to the presence of drugs/alcohol in the minor, to understand the nature of the treatment, consent is presumed.
MISCELLANEOUS CRIMINAL ACTS – TESTING
Certain criminal acts, primarily traffic and weapons possession violations, tie directly into the states authority to order drug screening. Although the role of the physician may be negligible or non-existent, it is important to understand the circumstances under which testing may occur.
Traffic
NRS 484.382 & 484.383, for example, deal with individuals suspected of driving or physically controlling a vehicle while under the influence of alcohol. Under these statutes, persons operating a vehicle on Nevada roads are deemed to have given consent to testing of the alcoholic content of the persons breath (preliminary testing – NRS 484.382), and subsequently of the persons breath, urine or blood to determine alcoholic content (evidentiary testing – NRS 484.383). (See also NRS 483.922 – Tests to determine the concentration level of alcohol or presence of controlled substance in drivers system: Implied consent to and grounds for administration). Under 484.383, reasonable force may be used, at the direction of the police, to obtain a sample from an uncooperative detainee. NRS 484.383(7).
NRS 484.391 allows an individual arrested on the suspension of driving a vehicle while under the influence of an intoxicating liquor or controlled substance to select a qualified person to administer the drug testing, at the individual defendants own expense. This is one instance where a physician or other qualified health care provider might be directly involved in the drug screening process associated with criminal activity.
Firearms
NRS 202.257 is similar to the traffic statutes with regard to drug testing, except that this statute deals with individuals possessing a firearm. It is illegal in Nevada to possess and control a firearm while under the influence of substances that prohibit the individual from safely exercising control over the firearm. As in Chapter 484, drug screening can be required, and the police may direct the use of reasonable physical force to obtain a test sample.
Physicians involved in this type of testing, for either traffic or other violations, are not required to administer the drug testing. If the physician feels uncomfortable administering a test under duress, or simply prefers not to do so, the physician should make those wishes known and elect not to participate.
DRUG TESTING IN THE PRIVATE SECTOR
There is little statutory law in Nevada addressing drug screening/testing in the private sector. As with the federal and state government, private employers have a need and a desire to conduct drug testing of employees on a routine basis. This applies to employers of physicians as well as other lines of work. The Nevada courts, however, have provided some direction with regard to drug screening of employees.
In Nevada Employment Security Department v. Holmes, 112 Nevada 275, 914 P.2d 611 (1996), the Nevada Supreme Court found that violation of the hotels drug-free workplace policy, which had a reasonable tie to the work performed, and included a 90 day warning that drug testing would be conducted, was reasonable grounds for dismissal of the employee for misconduct. Id at 284-285. This implies a physician can initiate an employee mandatory drug testing program upon a 90 day notice of the drug testing program.
Likewise, in Fremont Hotel and Casino v. Esposito, 104 Nev. 394, 760 P.2d 122 (1988), the court found that willful refusal to submit to drug screening, as directed by an employer, by an individual suspected of being under the influence, and included as part of the union collective bargaining agreement, was misconduct for which the employee could be fired. Additionally, since the employee was terminated for misconduct, the employee was not entitled to unemployment benefits paid by the state. (See also State Employment Security Department v. Evans, 111 Nev. 1118, 901 P.2d 156 (1995) – employee of explosive manufacturer was denied unemployment benefits after being fired for misconduct after testing positive for drug use as part of companies drug policy; the Court held the drug testing was reasonably designed to protect the business interest of the employer).
These cases support private employers initiation and enforcement of drug screening/testing programs that reasonably support the interests of the business, and are reasonably tied to the nature of the business conducted. Certainly, this would include physician employers. In a profession where access to controlled substances is necessary, and where the health and welfare of the public at large is the primary focus, drug testing programs should be a logical part of the business of medicine. Physicians should make employees aware that participation in a drug screening program will be a prerequisite for a job, and that periodic testing after employment may be expected. Violation of an employers drug-free workplace policy is a legitimate grounds for a misconduct dismissal.
CONCLUSION
A drug-free workplace is a legitimate goal for employers at the federal, state and private sector level. In many cases, it is mandatory to have such a program in place before doing business with the federal government. Likewise, drug screening as part of the law enforcement process is a legitimate tool to protect the safety of citizens. Physicians may be involved in the process as either an administrator of a test, or as the testee. If involved from the administrative end, remember that confidentiality must still be maintained under the law. If asked to submit to testing, understand that drug testing policies are legal in Nevada, and violation of the policy may result is disciplinary action, including misconduct termination.