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What Is a Reasonable Drug Testing Program?: Insight From Arbitration Decisions

NCJ Number
Labor Law Journal Volume: 39 Issue: 10 Dated: (October 1988) Pages: 688-695
P A Veglahn
Date Published
8 pages
This article examines published arbitration decisions on employee drug testing programs and enumerates factors that influence arbitration decisions about the right of employers to implement drug testing programs.
Employee drug testing has increased dramatically in recent years; 30 percent of Fortune 500 companies were involved in drug testing in 1985, an increase from 3 percent in 1982. The concern of employers over employee drug use is justifiable since research indicates drug users are 16 times more likely to be absent from work than nonusers, twice as likely to leave work early, three times more likely to be late for work, have four times as many accidents, and file five times as many compensation claims. A review of 41 published arbitration cases involving employee drug testing shows drug testing occurs in unionized companies under either negotiated testing programs or programs unilaterally imposed based on the claim that the management rights clause of collective bargaining agreements gives management the right to implement drug testing. Arbitrators are more likely to uphold the right to implement employee drug testing if testing is based on reasonable cause rather than being random. Employee drug testing may conflict with individual privacy rights, but arbitrators contend privacy concerns generally do not take precedence over an employer's well-founded desire for a drug-free workplace. An issue related to probable cause and privacy involves drug use off the job, and what constitutes an unsatisfactory drug test result has not been definitively established. The 41 arbitration decisions indicate an employer is on firm ground if the drug testing program is specifically negotiated with the union, is included in the contract and publicized, sets standards for requiring a drug test, establishes pass-fail scores, ensures proper handling of test samples, and specifies penalties for failing a drug test.


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