Uh-oh, he wants to contest his test result!

(July 2022) Real Life Incidents: Working Partners® Consortium members receive free phone support and consultation about drug-free workplace (DFWP) issues – a benefit we term “troubleshooting.” Here is a brief description of a troubleshoot and our response/suggestions.

Question/Situation

Program Administrator Alisa* called looking for help with a situation involving an applicant who wanted to contest a drug test result. She received a positive pre-employment test, and when she notified the applicant, Steve*, that his offer was rescinded, he was adamant that something must have gone wrong with the test and asked to retake it.

According to their drug-free workplace policy, retaking a test is not permitted when drug test results are contested. Instead, a portion of the original specimen (i.e., the “split specimen”) can be sent to a second laboratory and re-tested. Alisa told Steve he could call the medical review officer (MRO) and request and pay for the split specimen to be tested. And if the test came back negative, the company would reimburse him for the cost of the test and proceed with hiring him.

However, when Steve reached out to the MRO, he was told there wasn’t a split specimen available for testing. Steve reported this information to Alisa, and, unsure what to do, Alisa reached out to Working Partners®.

Response

After reviewing the organization’s policy and confirming Steve understood his option to contest a result, we wanted to make sure Alisa did her due diligence in responding to the collection error, which resulted in a lack of a split specimen to test. We suggested she

• contact her drug testing vendor to confirm her account was set up for split-specimen collection,
• confirm the chain-of-custody form was filled out correctly, and
• contact the collection facility to get their side of the story.

Alisa reviewed her account information and confirmed all specimens were supposed to be split at the time of collection. She was also able to confirm, by examining her copy of the chain of custody form, that the “split” box was checked. Unfortunately, when she spoke with the collection facility, they admitted they were very busy that day and forgot to pour the sample into two bottles. In short, the problem was the result of human error.

Now what?

Our client care consultant and Alisa brainstormed some action steps since the applicant still wanted to contest the result, but there was no way to follow their standard procedures (due to no fault of the company):

• Department of Transportation (DOT) guidelines state that if a split specimen isn’t available to be tested when requested, the positive test should be disregarded, and the individual should be sent for a new test as soon as possible. And the result of the second test would stand. Though DOT did not mandate this test, their standards can typically be followed as best practice when a company’s policy is silent on an issue. As such, Alisa could ask Steve to go to the collection site for another test and then follow her policy guidelines when presented with the result.
• Contact the medical review officer (MRO) to see what, if any, insights they might have. The MRO will likely not be able to go into specifics but may have access to data from the laboratory that could help determine an appropriate next step. Notably, any information or direction provided by an MRO (i.e., an outside authority) would be helpful if the company was asked to defend its decision.
• The company could consider the result final and follow through with rescinding the offer of employment. We discussed the awkwardness of upholding one element of the policy (rescinding the job offer following a positive pre-employment test) compared to not upholding another policy element (option for contesting the result).

Alisa decided she would take the options back to the company’s decision-making team to decide how to proceed. Ultimately, they chose to follow DOT guidelines and sent the applicant for a new test (which also came back positive).

Alisa asked what she would do if that same situation happened with an existing employee, like on a random test. We reminded her that the same options above could be in play but that she would need to consider the test positive until the situation was resolved. Meaning that she would want to keep the employee off the job until they either received a negative result as part of a retest or the corrective action for a positive test was administered (e.g., completing an alcohol/drug assessment and any recommended education and/or treatment).

If you’re a Working Partners® Consortium member and you have a question about what you should do around a drug test result or another aspect of your program, don’t forget your access to this troubleshooting service. As we advise our members, if it takes more than 10 minutes to figure out, call us for help and be safe, not sorry!

Call Working Partners® Consortium at 614-337-8200 or 866-354-3397.

*Names have been changed to protect identities.