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Drug Testing and Alcohol Testing in Texas
Texas is a big State with a lot of drug testing. There are many locations available in Texas for drug testing so National Drug Screening can help you to get a drug test done just about anywhere in Texas from Dallas to Houston to San Antonio to Midland. Drug testing is available for employers and for individuals. Under Texas and federal laws, there is almost no limitation at all on the right of private employers to adopt drug and alcohol testing policies for their workers.
National Drug Screening offers medical review officer (MRO) services throughout Texas and also offers drug testing software. Our robust technology drug testing software system manages the entire drug testing program for Texas employers conducting drug testing.
Drug testing basically started in the 1980s, after President Ronald Reagan issued a mandate ordering federal agencies to have drug-free work places. The federal government and many other employers now have mandatory drug testing. Drug testing occurs daily in the State of Texas. Drug testing in the oil and gas industry in Texas is huge.
What is a good, basic drug testing policy?
Most drug free workplace policies start out by emphasizing in positive terms the need for safety in the workplace and adherence to job requirements and work quality, and go on to cite goals such as improving safety and productivity. The policy should address certain questions:
- What positive drug test will be considered a violation? (necessary)
- Which employees will be covered for drug testing? (necessary)
- What disciplinary measures will result from violations of the drug free workplace policy? (necessary)
- Will the company allow rehabilitation after a positive drug test? (optional - not required by any Texas or federal law)
What kind of documentation is needed in a TWC unemployment claim regarding a positive drug test in Texas?
A TWC precedent case, Appeal No. 97-003744-10-040997, sets out some fairly clear guidelines regarding the kind of documentation an employer needs to respond to an unemployment claim involving an ex-employee whose termination resulted from failing a drug test. To establish that a claimant's positive drug test result constitutes misconduct, an employer must present:
- A policy prohibiting a positive drug test result, receipt of which has been acknowledged by the claimant
- Evidence to establish that the claimant has consented to drug testing under the policy
- Documentation to establish that the chain of custody of the claimant's sample was maintained
- Documentation from a drug testing laboratory to establish that an initial test was confirmed by the gas chromatography/mass spectrometry method
- Documentation of the test expressed in terms of a positive result above a stated test threshold
Evidence of these five elements is what TWC states is needed to overcome a claimant's sworn denial of drug use. That is why it is so important to have each employee sign a consent form allowing complete disclosure of all test documentation by both the testing lab and the employer for the purpose of responding to claims and lawsuits.
Cheating the Drug Test in Texas
Texas has a law against cheating on a drug test. Under Texas law, using a substance or device to try to falsify drug test results is a Class B misdemeanor, which carries a maximum penalty of 180 days in jail and a $2,000 fine. Falsification of a drug test is an offense in Texas with the person committing the act of using substances or devices to falsify drug tests guilty of a Class B misdemeanor and those aiding or delivering substances intended to falsify the test for drugs guilty of a Class A misdemeanor.
Denial of a Workers Comp Claim for a Positive Drug Test in Texas
The intoxication defense often works in Texas to deny a claim saving both the employer and the employee money. The intoxication defense stands as a way for employers to avoid liability when a claimant was injured because of his/her intoxication. Don’t forget the post-accident drug and alcohol test after an injury.
A workers comp claim in Texas may be denied if the employee tests positive for drug or alcohol after an accident. Workers comp carriers require a drug test for post-accident situations. According to the Division of Workers Compensation, rebuttable presumption means that the burden of proof shifts to the claimant to prove that they are not intoxicated at the time of injury. This creates a significant hurdle for the injured worker. Now, before you rush to judgment and say that the workers gets what they deserve for using drugs, keep this in mind: the injured worker loses if they test positive for drugs whether or not the drugs had anything to do with the injury or not!
Claimants frequently challenge the validity of the drug or alcohol test when there is a lapse of time between the injury causing event and the taking of the blood or urine sample. If there is too great a gap, the Division of Workers’ Compensation may find the intoxication occurred after the injury. In such situations, the insurer is left to present evidence from witnesses who may testify that the worker did not have his normal faculties prior to the injury. Few supervisors are willing to testify their worker did not have normal control of his faculties since that begs the question why the supervisor allowed him to continue working. For this reason, it is crucial for employers to send injured workers’ for testing as soon as possible after the report of injury. Significantly, a worker’s refusal to submit to a drug screen may not, in and of itself, be sufficient to shift the burden of proof to the employee to establish non-intoxication. However, a refusal to undergo a drug screen coupled with other circumstances may be sufficient. The other circumstances may be a positive test after a delay in testing or testimony from co-workers that the claimant did not have normal control of his faculties.
Why Reasonable Suspicion Testing in Texas?
Reasonable suspicion testing is similar to, and sometimes referred to, as “probable-cause” or “for-cause” testing and is conducted when supervisors document observable signs and symptoms that lead them to suspect drug use or a drug-free workplace policy violation. It is extremely important to have clear, consistent definitions of what behavior justifies drug and alcohol testing and any suspicion should be clearly documented. Since this type of testing is at the discretion of management, it requires careful, comprehensive supervisor training. In addition, it is advised that employees who are suspected of drug use or a policy violation not return to work while awaiting the results of reasonable suspicion testing. Prevent accidents, workplace violence and other liability problems with reasonable suspicion testing. Reasonable suspicion testing helps to identify employees that have a drug problem and can cause your company harm. Texas employers should adopt policies and provide supervisor training for reasonable suspicion testing.