State Program

So, how does the supervisor know when and how to act in this very sensitive area?

Proper application of the substance abuse rules begins and ends with good supervision. These rules be should be enforced through the ongoing application of the basic supervisory practices. These include:

defining performance expectations
communicating performance objectives
monitoring work performance
encouraging and commending good work
responding on a timely basis when problems arise

Supervisors should not attempt to conduct assessments or diagnosis that should be done by professional and medical experts.

applying the rules

The following information was adapted from State Program for Employees Designated as Sensitive: Applying the Rules, developed by the California Department of Human Resources.

We know that an employee’s ability to perform safely and effectively can be impaired by illegal drugs, alcohol, legally prescribed medications, or a combination of these.

How is the supervisor to determine when there is reasonable suspicion that the employee is actually "under the influence"?

What happens then?

The following material gives practical direction to supervisors in these areas. It begins with a discussion of reasonable suspicion and then "walks through" the entire drug test process from the supervisor’s point of view.

definition of reasonable suspicion

The CalHR rules define reasonable suspicion as:

". . . good faith belief, based on articulable facts or evidence that the employee has violated the policy . . . and that substance testing would reveal evidence related to that violation." (Title 2, CCR, Article 29, section 599.962. Reasonable Suspicion)

This rule is written very broadly. This was necessary, since no rule could give specific guidance on every circumstance in which reasonable suspicion might arise. This leaves a heavy responsibility with supervisors and managers to apply it with proper case-by-case judgment and discretion. By reviewing the key elements of the rule we can see how this should occur.

"Good Faith" is the first key element. Without it any finding of reasonable suspicion is indefensible. Good faith means that determinations of reasonable suspicion are made carefully, honestly, and without improper motives such as discrimination, reprisal, or personal animosity. Every potential finding of reasonable suspicion must be critically and honestly examined by the supervisors and confirming official involved to make sure that the action is being taken in good faith.

Next, there must be "articulable facts" or "evidence". Reasonable suspicion cannot be based on hunches, intuition, or "gut feelings." Substance testing is very sensitive and has many legal issues surrounding it. Therefore, the supervisor’s basis for reasonable suspicion must be specific enough to be clearly documented and readily explained to the employee, his or her representative, higher level management and, when necessary, hearing officers and the courts. A review of the Reasonable Suspicion Documentation form will provide assistance/examples of articulable facts that may be used to determine reasonable suspicion.

Finally, there is the requirement that reasonable suspicion will include the belief that substance testing will "reveal evidence" of the suspected drug or alcohol abuse. This is because substance testing is intended to detect current impairment, rather than past behavior. Therefore, information about an employee’s actions two or three weeks ago would not establish reasonable suspicion under CalHR rules unless there was also evidence of more recent use. This is because the acute affects of the substances covered by the rules are of short duration. For example, one expert cites the following time frames for cocaine:

Intense euphoria 5-15 minutes
Lesser euphoria 3-4 hours
Remains in bloodstream 3-6 hours
Detectable in urine Up to 48 hours

Time frames vary with each substance, and there may be variations from the averages. However, the basic point is that drug testing must be focused on the detection of use that may be affecting the employee’s current performance.

begin with good supervisory practices

Proper application of the substance abuse rules begins and ends with good supervision. These include establishing and communicating performance objectives, monitoring work performance, encouraging and commending good work, responding on a timely basis when problems arise. With this as the basic premise, the following sections discuss how the substance abuse rules and reasonable suspicion enter into the picture.

Know your employees

Reasonable suspicion typically involves something about the employee that is abnormal. To distinguish this, the supervisor must first know what is normal for each of their employees. What is their usual appearance, behavior, mannerisms, work performance, etc?

By knowing this, the supervisor will be able to put his or her observations of the employee into proper perspective.

Note unusual events and circumstances that can include, but not be limited to:

Accidents
Unusual demeanor or appearance
Unusual behavior
Major performance failure
Tips*

* When considered credible, tips may be the basis for initiating closer observation of the employee to determine if other evidence of reasonable suspicion is present. However, if closer observation does not yield supporting evidence, the tip alone should not be the sole basis for initiating drug testing.

Determine possible cause

Substance abuse is by no means the only cause for unusual events in the work place. For example:

accidents can be caused by inexperience
atypical behavior can be caused by stress and
redness in the eyes can be caused by hay fever

Therefore, the supervisor must assess all of the facts and circumstance surrounding each event before determining that substance abuse cannot be reasonably ruled out as a possible cause. Discussing the events with the employee will often be helpful in this regard; however, remember the following:

Plan the discussion in advance to keep better control of it. Give thought to how you will state any concerns to the employee and know what you will need to obtain from the discussion.
Remember that the employee has a right to representation in any discussions that could lead to disciplinary action. Basically, allow the employee to have a representative present if they ask for one and are able to have one present on a timely basis (within 20 minutes).
Select a time and place that will allow as much privacy and free discussion as possible.
Be direct, factual, firm, calm and professional.
Do not lose your temper, insult or personally attack the employee, engage in pointless debate or discussion of unrelated issues, or apologize for your actions.
If the employee is violent or threatening, seek the assistance of the California Highway Patrol (CHP) or local police. Contact the departmental Violence in the Workplace team, at (916) 376-5344, after emergency response personnel have been contacted (don't delay emergency response while attempting to contact the Violence in the Workplace Team).
Seek medical help immediately if the employee is unconscious, in convulsions, etc.

If substance abuse cannot be ruled out at this point, the supervisor must proceed to the more specific steps involved in determining whether reasonable suspicion exists. This is a critical point since it begins the formal application of the substance abuse rules. The initial steps are outlined in "Establishing Reasonable Suspicion."

Establishing reasonable suspicion

Make a closer observation to detect possible signs of substance impairment.

The nature of this observation will depend on the particular qualifications of the supervisor. Many law enforcement supervisors are trained and experienced in field sobriety testing techniques and can use these to make their reasonable suspicion determination. Similarly, doctors and nurses may employ various medical screening techniques (e.g., checking vital signs).

Other supervisors who are not trained and experienced in these techniques will have to rely on observations that do not require special expertise such as the employee’s basic appearance, demeanor and physical condition.

Involve another supervisor, if possible.

If reasonable suspicion still exists at this stage it will often be useful to involve another supervisor in this process before initiating substance testing. A second opinion will help ensure the factors are considered and put in proper perspective. In addition, having two onsite confirmations will give the state a stronger case in any future appeals or litigation.

Contact the appointing power of his/her designated representative.

The CalHR rules require that each finding of reasonable suspicion be confirmed by the appointing power (the Director of DGS) or his/her designated representative who has been trained in the substance abuse rules (the Substance Abuse Program Administrator). This is to ensure consistency and proper application of the rules. It also supports the supervisor by providing expert guidance and direction at a very critical time.

To accomplish this review step, the supervisor should contact the DGS Substance Abuse Program Administrator and review the facts and circumstances in detail with him/her. In the absence of the DGS Substance Abuse Program Administrator, a backup will be provided for assistance.

Initiating the process

If the process results in a finding of reasonable suspicion, the next step is to send the employee to a designated clinic or similar site to give a urine sample. These sites have been selected in advance and have been screened to ensure that their collection and chain of custody procedures comply with the CalHR rules. Every state work location with sensitive positions should have a site identified for this purpose. If you don’t know what the site is for your location, contact the DGS Substance Abuse Administrator at (916) 322-6058.

This step is very sensitive since the employee may be upset and/or argumentative. In addition, the reasonable suspicion finding increases the state’s potential for liability in its following dealings with the employee.

As a basic rule, the supervisor’s actions should always be based on a concern for all of the following:

Safety of the employee and others
Proper enforcement of the state’s substance abuse rules.
Employee rights and privacy.

Following are specific suggestions on initiating the process:

Inform employee that a decision has been reached (and approved) to send him/her for a substance test. Again, plan your discussion in advance and select an appropriate setting for it.
Assure employee that sample collection will occur at a clinical setting and will be done by professional staff. Inform the employee of how he/she will be transported to the site.
If the employee refuses to go for testing, inform the employee that he/she could become subject to adverse action as a result of that. Do not attempt or threaten to use physical force to make the employee cooperate.
If the employee maintains that he/she is innocent, inform the employee that reasonable suspicion nevertheless exists and that, under DPA rules, the substance test will now be the means of determining that.
If the employee asks, volunteers, or demands to leave tell them that this would be inappropriate since they are being ordered to go to a collection site to give a sample. As discussed above, if they elect to leave, they would be subject to disciplinary action. In addition, inform the employee that if they leave driving a motor vehicle you will be required to inform the police that they have done so and that you have reasonable suspicion that they are under the influence.
If the employee asks, volunteers, or demands to leave tell them that this would be inappropriate since they are being ordered to go to a collection site to give a sample. As discussed above, if they elect to leave, they would be subject to disciplinary action. In addition, inform the employee that if they leave driving a motor vehicle you will be required to inform the police that they have done so and that you have reasonable suspicion that they are under the influence.
Until the employee is taken to the sample collection site, keep him/her under observation. Do not allow the employee to go to his/her desk, car, locker, etc., without supervision.

employee rights

Following are employee rights related to reasonable suspicion substance abuse testing for sensitive positions.

Employees suspected of violating the policy prescribed in CCR section 599.960 shall be entitled to representation during any interviews with the affected employee that could lead a decision by the appointing power to take adverse action against the employee, regardless of whether these interviews occur before or after the sample is taken. Employees shall also be entitled to representation in any discussions with the Medical Review Officer pertaining to the drug testing process and results (CCR section 599.965).
The sample collection process shall include the opportunity for the employee to provide information about factors other than illegal drug use, such as taking legally prescribed medication that could cause a positive test result. At the employee’s option, the information may be submitted in a sealed envelope to be opened only by the Medical Review Officer if the test result is positive.
The employee shall receive a full copy of any test results and related documentation of the testing process.
All confirmed positive samples shall be retained by the testing laboratory in secured frozen storage for one year following the test or until the sample is no longer needed for appeal proceedings or litigation, whichever is longer. At the employee’s request and expense the sample may be re-tested by that laboratory or another laboratory of the employee’s choice.

Procedure

Transportation to collection site

Contact the test site, arrange an immediate appointment, and obtain directions to the site.
Call a cab and escort the employee to the sample collection site and then home. If you feel uncomfortable yourself (in a cab), we advise that you ask another supervisor to go with you. Do not allow the employee to go alone.
Call a cab and escort the employee to the sample collection site and then home. If you feel uncomfortable yourself (in a cab), we advise that you ask another supervisor to go with you. Do not allow the employee to go alone.
If there is a concern about the employee’s behavior, have more than one person accompany him/her to the site.
Upon arrival inform the sample collection site staff that the employee has been brought for a urine sample collection under the State of California contract. At this point the clinical personnel at the site will assume responsibility for the actual sample collection. The supervisor is not involved in this.

After the sample collection

Since the test referral was predicated on reasonable suspicion that the employee was “under the influence”, the employee would normally be sent home (on Administrative Time Off ) after the sample collection.
Arrange to have the employee taken home in a cab or contact family or a friend to do so. Inform the employee of this arrangement.
If the employee insists on driving and he or she appears to be under the influence, notify the appropriate law enforcement agency. If possible, tell the employee that you will do this. Also, document the fact they were offered a ride but refused.

Until the test results come in

After the sample has been collected, a courier service will pick it up and take it to the laboratory. When it arrives (usually the next day) a screening test will be run on it. If this test is positive, a more sophisticated confirmation test will be run. The sample will be considered positive only if both the screening and confirmed test results are positive.

When the laboratory testing is completed (usually 24-48 hours upon arrival at the lab) the results will be forwarded to the designated Medical Review Officer. The department uses the doctors under contract with the Department of Personnel Administration for this purpose. The Medical Review Officer will review the results, interview the employee (as needed), and then inform the departmental Substance Abuse Program Administrator of the test results.

These steps will usually require a total of four to six days. Therefore, there is the issue of what to do with the employee during this time. Following are some basic guidelines on this:

The employee should not return to work in any capacity while still "under the influence."
The employee should usually not return to "sensitive" duties until the test results are known and follow-up actions are determined. The employee should never return to sensitive work while there is any doubt about their ability or willingness to remain unimpaired while performing them.
Time that the employee is ordered off the job under these procedures should be paid administrative leave.
Employees who are placed on limited duty pending test results shall retain full pay, benefits, and status through this period.

When the results are known

As in the past, there will be a case-by-case determination concerning what action to take in response to the employee’s substance abuse infraction. This decision process will typically include the supervisor, departmental management, the personnel office and the Employee Assistance Program (EAP). Options include one or a combination of EAP/rehabilitation, adverse action, and medical review/action.

The action(s) will be selected based on consideration of the employee’s past work record, the nature of the incident that led to the employee being sent for a substance test, the employee’s potential to once again perform effectively in his/her sensitive position, etc.

Employee Assistance Program

When the employee will be remaining in or returning to the state work force, the department's EAP provider will be an important resource for helping the employee deal with his/her substance abuse problem. The departmental EAP provider is Magellan Healthcare. Magellan Healthcare staff are available 24 hours and can be reached at 1-866-327-4762.
Through the EAP provider, the employee can receive an assessment, short-term counseling and referral to an appropriate source of further help.
The EAP provider will receive all test results and will notify the supervisor when an employee may return to duty.

Adverse Action

Decisions to initiate adverse action should always involve departmental management, the personnel office and the department’s legal staff.
Actions should never be based on the laboratory test results alone. They should focus on the entire picture, including the employee’s work performance, his/her behavior in the workplace, and the specific facts and evidence supporting the reasonable suspicion finding as well as the test results.
In some cases it may be appropriate to have an agreement/contract with the employee for continued employment. This occurs when it is appropriate to keep the employee in the work force if certain conditions such as successful completion of rehabilitation and follow-up substance testing are met.
In many cases such a contract will be part of a disciplinary action.

It must be emphasized that the substance test results are not an end in themselves. They merely provide confirmation of the employee’s drug or alcohol abuse. Appropriate resolution will include medical review and/or other appropriate supervisory practices. Additional guidance is available to supervisors through the DGS Substance Abuse Program Administrator.