HRMN 5460 Chap 6

Post Hire Medical Exams (Employees)

-An employer may make disability-required inquires or require a medical examination when the employer has a reasonable belief, based on Objective evidence that: ---An employees ability to perform essential functions will be impaired by a medical condition ---An employee will pose a direct threat to the health and safety of others due to a medical condition

Americans with Disabilities Act (ADA)

-An employer must not discriminate against an employee who has undergone treatment for drug addiction and is no longer using drugs -Must consider whether the employee is able to perform essential functions of the job, with our without reasonable accommodation

Federal contracts must comply with the Drug Free Workplace Act (DFWA) which requires employers to:

-Develop & communicate policies concerning drug use, sale or possession in the workplace -Inform employees about the dangers of drug use and options for counseling and treatment -Report drug use convictions

To qualify for these programs:

-Must test job applicants upon conditional offers of employment -Must include notice of testing in job announcements -Generally, the program follows the program requirements under federal Drug-Free Workplace Act and the Omnibus Transportation Employee Testing Act

Best Practices for Drug Testing

-Notify employees if they are subject to drug testing -Notify employees of the circumstances under which the drug testing will cover -Notify employees of the consequences of testing positive -Carefully label specimens -Document chain of custody for samples

Steps to take in testing for Reasonable Suspicion in drug use:

-Only supervisors trained in signs and symptoms of probable drug use and alcohol misuse can make decision to test -Document the signs and symptoms observed (Ie. Smells, slurred speech, eye dilation) -Observation of employee should be made by 2 HR employees -Approach employee discreetly and with respect -Conduct interview and explain required drug test in private place -Transport them to and from drug testing center

GINA Cont.

-Pre-employment exams must not include taking family medical history or other forms of genetic information gathering -Employers can violate GINA by requesting information to healthcare providers

Drug Testing in employment is used:

-Prior to hiring -As part of periodic medical exams -To verify that employees who have been through drug rehab programs are "Clean" -Upon observation of aberrant behavior that creates reasonable suspicion of drug use -Randomly

Genetic Information Nondiscrimination Act (GINA)

-Prohibits discrimination in employment and health insurance based on genetic information and restricts the acquisition and disclosure of such information -Primarily concerned with protecting individuals who may be discriminated against because employers think they are at an increased risk of developing a condition in the future

Drug Testing-Public Employers

-Random drug testing by public employers is prohibited by the Fourth Amendment to the US Constitution, prohibiting unreasonable search and seizure -Public employers may drug test for safety-sensitive jobs or upon reasonable suspicion

Best Practices for Drug Testing Cont.

-Take into account medications that may affect the result -Treat all drug tests as confidential -After positive result seek information about medications the employee is taking -Use reputable labs, monitor their progress

T/F Under the ADA, prior to making a Conditional Offer of Employment, an employer is prohibited from requiring applicants to submit to medical exams.

-True -Medical exams following conditional offers of employment are unrestricted in scope, and may inquire into physical and mental health of applicants which are NOT job related

Exceptions to the general rule against requesting, requiring, or purchasing genetic information (GINA)

-Where the information is acquired inadvertently- "The water cooler problem" ---Overhears discussion between employees ---Employer generally asks about employees well being ---Social media -From sources that are commercially and publicly available (Newspapers, obituary)

Regulations for drug testing under Omnibus Transportation Employee Testing Act include:

-use of tamperproof custody seals on specimen containers -Documentation of Chain of Custody -Confirmatory Tests- Second more sophisticated test to ensure result -Use of a qualified Medical Review Officer (Licensed physician who acts as an agent of employer) to interpret results and communicate them

EEOC's Seven-Factor Test

1. Whether the test is administered by a health care professional 2. Whether the test is interpreted by a health care professional 3. Whether the test is designed to reveal an impairment or physical or mental health 4. Whether the test is invasive 5. Whether the test measures an employee's performance of a task or his/her physiological response to performing tasks 6. Whether the test is normal given in a medical setting 7. Whether medical equipment is used

________ has a drug-free workplace program where employers can qualify for discounts on worker's compensation programs.

Alabama

The EEOC defines Medical Examinations as

Any "Procedure or test that seeks information about an individual's impairments or health" -EEOC provides a seven-factor test to determine if a test or procedure is a medical examination

Omnibus Transportation Employee Testing Act

Covers employees in safety sensitive jobs in aviation, pipeline, public transportation, railroad, ship vessels, trucking, tour bus, school bus

May an employee refuse to be tested?

Generally, no. But depends on which laws cover an employee: Government Employee, Federal Laws, State Laws, Unionized Employee

________________ of union members is a topic of mandatory bargaining

Random drug testing

T/F Drug and alcohol testing of employees in transportation-related jobs is required

True

T/F Drug tests searching for illegal substances are NOT medical exams.

True

T/F If a test is a medical exam, then it is covered by the ADA

True

T/F Testing for prescription drugs taken for medical conditions that might be disabling IS a medical exam

True

T/F Beyond these federal laws, drug testing laws vary from state to federal

True -About half of all states have drug testing laws -No state prohibits the drug testing of employees