There may be no more vulnerable segment in our society than residents in long-term care (“LTC”) facilities – the aged, the physically disabled, the mentally and emotionally hurting. Not coincidentally, there may be no more powerful a group with the capacity to harm than those who care for LTC patients. Statistics don’t lie. According to the Office of Inspector General of the U.S. Department of Health and Human Services, 25% of Medicare patients in nursing homes suffered preventable injuries from 2008 to 2012. And, as reported by USA Today, “more than 100,000 doctors, nurses, medical technicians and healthcare aids are abusing or dependent on prescriptions drugs in a given year, putting patients at risk.” Makes sense then to drug test LTC workers and to have a comprehensive statutory or regulatory testing scheme, especially in California where about 350,000 patients reside in LTC facilities each year, as counted by the California Association of Health Facilities.
Oddly enough, in regulation-heavy California, where new employment statutes and regulations sprout as often as weeds in drought-stricken lawns, there is NO state statutory or regulatory scheme for private employee drug screening. This surprising omission may be due in large part to the state’s strong constitutional right to privacy (or a conspiracy to keep lawyers busy). The legality of a challenged drug test is adjudicated on a case-by-case basis – a nerve racking, roll-the-dice balancing of competing interests. The employee’s reasonable expectation of privacy is measured against the employer’s legitimate reason for testing. In the LTC setting, this balancing test is significant, since the direct beneficiary or victim is the patient.If the LTC employer doesn’t drug test its employees, then patient safety (and the facility’s accreditation) is at significant risk. If that employer does test, it had better test well, because failing to do so could land the LTC employer in court, facing a barrage of employee civil claims, such as invasion of privacy, negligence, defamation, wrongful termination, discrimination and retaliation.
So what’s a LTC employer to do? Well, it can’t eliminate these risks, but it can take steps to reduce them. First, as a preemptive move, advise all job applicants that as employees they may be subject to drug testing in certain circumstances. This advance notice might dissuade recreational drug users from even applying.
Second, LTC employers should have a comprehensive, privacy-cognizant written drug testing policy that is distributed to all employees on their first day on the job. This early notice lessens the employee’s privacy expectation and, thus, increases the chances that the drug test’s legality will be upheld in court. The written policy should include the reasons for drug testing (e.g., patient and employee safety, etc.), the objective basis for testing (e.g., reasonable suspicion based upon objective symptoms), the least-intrusive testing protocol to be followed, the limited dissemination and use of the drug test results, and the consequences of a positive test result, including retesting. Random drug testing is not prohibited, but its legitimate use appears limited to employees whose occupations carry increased risks of injury to themselves or third-parties.
Third, implement that policy consistently, fairly (i.e., non-discriminatorily), and with detailed documentation and preservation of evidence. Obviously, drug-testing limited to certain protected categories of employees is just asking for a complaint to the EEOC or the California Department of Fair Employment and Housing, a civil lawsuit, or a class action. Although not required for drug testing of private employees, best practices for LTC employers include following mandated protocols for testing of state government employees – have the samples collected by a licensed physician in a certified commercial laboratory, ensure the lab handling the analysis satisfies federal standards, provide the results (positive or negative) to the employee, and preserve the sample (e.g., freezing) for one year or the conclusion of litigation, whichever is later.
The need for drug testing of California LTC workers is obvious, as is the need for a detailed written policy that reflects the delicate balance of privacy expectations with protecting the well being of patients and coworkers. But, make sure that policy is carried out appropriately – a perfectly written policy is not a defense to flawed implementation in California.