Drug testing is now commonplace in the pharmacy environment. A test before employment and the possibility of random testing is expected by job applicants these days. And it is generally complied without a second thought.
This was not always so. And it has not been that long since drug tests were a new thing. When they were, drug tests were fought ferociously by many parties.
Arguments against drug testing were based on the Fourth Amendment of the US Constitution. The Amendment states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” . Early on, courts held that drug testing,–requiring an individual to supply bodily fluids such as urine or blood—constituted an unlawful taking. If the individual did not want to voluntarily provide the fluids, the courts said, an employer acting against the employee’s refusal was violating his or her civil rights. Forcing a person to supply these fluids, which are a part of the body or “person” was protected by the Fourth Amendment.
However, it was not long before courts began handing out exceptions to these holdings. The first were not pharmacists, but they would soon follow. Over the road truck drivers and train engineers were among the first. Courts carved out the first—and most relied on—exception on the basis of public policy; protecting the people while traveling from drivers and engineers being impaired and endangering others on the roads and rails. The Fourth Amendment is not substantially sacrificed nor endangered, the courts held, where the exception seeks to achieve the greater good for the greater number.
Health care was not far behind. The exception followed the same course: we do not want the persons preparing and dispensing medications to be impaired when doing so. Not long later, a second exception was created as diversion issues became a serious problem in the nation’s pharmacies. Inevitably, pre-employment screening was permitted to weed out those persons who are or could be impaired before employment began.
Today, as written above, pharmacists expect a pre-employment drug test as well as the possibility of random testing during employment. How do they do this? Drug testing must be mentioned to the potential employer during the employment interview. The requirement must be included in any policy and procedure manual and/or employment handbook and a copy of the latter must be given to the employee.
What about introducing drug testing into a pharmacy environment where it has not existed before? This can be done. Employees must be given notice prior to implementation. This should be in writing but can be accompanied –not replaced—with verbal announcement. The notice should state when the policy is going into effect and would best be no less than thirty days out. Even if the policy is being implemented due to reasonable suspicions against a single employee, the initial use of the policy would best be to do all employees to avoid any hint of discrimination. Should an employee choose to leave rather than submit to drug testing, nothing should be presumed from this departure nor should this be mentioned if a potential employer for that person should call for a reference.
Results of a positive drug test usually mean a suspension or termination of employment. If a suspension, the employee may also be required during that time to attend a detox/rehab facility as a condition of returning to employment. An employee who believes that a drug test is a false positive has the right to demand a second test, and nothing prevents the employee from doing so, at the employee’s expense, at even another facility. If the tests differ in results, the employer may still suspend the employee until the situation is resolved.
What if an employee is taking a drug pursuant to a legitimate prescription that shows up on a drug test? The employer can still suspend the employee if the legitimate drug shows reasonable evidence of impairment. EG, a pharmacist returns to work after an orthopedic procedure but still takes hydrocodone for his pain at work. If the employer notes slowness and slurring of speech and does a drug test, the employee may be sent home until he is no longer on the medication. Termination here is inappropriate unless the pharmacist was hiding the fact that he was still taking the controlled substance.
Aside from employment, the Board of Pharmacy may require a drug test. This must be in response to a complaint or be a condition of an Agreed Order between the Board and the affected individual. This cannot be a part of a routine inspection unless something during the inspection indicates to the inspector that a pharmacy employee is impaired.
Drug testing is now a legitimate part of pharmacy. The old arguments against such testing have lost their validity, for the most part.