AICC AICC 40 Years

Posted April 19, 2017 by Virginia Humphrey

Written by Christine Walters, FiveL

The issue of substance testing has made headlines at least twice in the last month so it seems an issue worthy of some consideration.

Half Empty: On February 24th the EEOC ANNOUNCED settlement in which the employer agreed to pay $30,000 in response to an allegation of disability discrimination in violation of the Americans with Disabilities Act (ADA).  An employer approved an applicant for hire conditioned upon a drug screen.  The candidate agreed to the test but explained he could provide a blood but not a urine sample due to his medical condition. The prospective employer initially agreed but subsequently withdrew the offer of employment. The EEOC filed suit and the employer settled for $30,000 in compensatory damages. The employer must also develop a written drug testing policy  and provide a 1.5 hour training program, provided annually on that policy to its recruiters and the head of safety. for the next two years.

Half Full: On February 17th the Supreme Court of Appeals of West Virginia FOUND an employer did not discriminate against an employee who was fired after she refused to submit to a substance test.  The employee had previously disclosed to the employer a number of medical conditions she had that impacted her physically including her speech and body movements.  The employer asked her to submit medical documentation of her conditions, which the employee did not do. So when five other employees reported on the same day that they observed erratic behavior on this employee's part, the employer instructed her to submit to substance testing.  She declined to do so even after the employer explained that refusal could have serious consequences.  The employer subsequently suspended the employee from work and notified her that they would not renew her teaching contract. She then sued for unlawful discrimination under the ADA. The lower court found in favor of the employer as well as the Supreme Court.  

Lessons Learned? 
1. Take Heed of the Court's Demand #1. If you conduct or want to reserve the right to conduct workplace substance testing have a related policy.  Ensure it provides options for individuals to provide an authorized specimen. 
2. Take Heed of the Court's Demand #2. Train those who will identity individuals to be tested. Consider providing that same training to not just your recruiter(s) but to managers and supervisors who have the authority to identify an employee who appears unfit for duty and/or could direct the employee to submit to testing. 
3. Comply with State Requirements. Many states have their own laws and/or regulations that define authorized specimen, such as barring breath testing; require specific notice that must be given to an individual upon receipt of a positive result and more.   
Christine will be presenting at the AICC 2017 SPRING MEETING:

Keynote Presentation: Thursday, April 27 - 8:35 - 9:00 AM
Topic: What's Keeping You UP at Night? Employment Laws, Legislation & Regulation Impacting Business Practices

Workshop Presentations:
  • Thursday, April 27 - 10:00 - 11:30 AM
    Employee Handbooks, Read 'Em & Weep

  • Friday, April 28 - 8:30 - 10:00 AM
    Topics: HR's Top Ten Headaches
BONUS! By attending Christine's two workshops (on Thursday & Friday) and her General Session presentation, you will be pre-approved by HRCI for 3.5 continuing education credits!


WEBINAR 1:  The Latest news in Managing Disability & 
                              Leave Issues
WEBINAR 2:  Social Media and its Impact in the Workplace

WEBINAR 3:  Workplace Harassment: Trends Tips 
                             and Tools


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