Fall 2004-11 Drug testing in the private sector
Number 57
Fall 2004
Drug testing in the private sector
Employers are often in the dark when it comes to Law No. 59, the Law to Regulate Drug Testing in the Private Sector. The most important provisions of the Drug Testing Act to be considered by employers in developing a program for detecting the use of controlled substances are discussed below.
Establishment of program
The Drug Testing Act requires that tests be conducted on all employees and employment candidates in a consistent and uniform manner, and according to the terms of a plan that the employer has adopted. It is the employer’s duty to inform employees by delivering a copy of the drug-testing program to them at least 60 days before its effective date, and to employment candidates at the time they apply for employment.
The Drug Testing Act also requires that the program include a plan to educate and inform employees about the health risks associated with the improper use of controlled substances.
Circumstances under which drug test may be administered
The Drug Testing Act acknowledges the employer’s right to request employees to submit to drug testing under the following circumstances:
when a work-related accident occurs;
when there is a reasonable suspicion that the employee is using a controlled substance;
as a condition of hiring; or
as part of a follow-up program for employees in rehabilitation programs.
Employees may be required to submit to a maximum of two tests per year, unless on one of these tests a duly verified positive result is obtained, or as part of a counseling, treatment, or rehabilitation program.
Work-related accident
As amended by Law No. 160 of August 12, 2000, the Drug Testing Act defines the term “accident” to include not only serious accidents, but any type of accident that affects or puts in risk the health, safety, or property of any natural or legal person.
Reasonable suspicion
For testing purposes, reasonable suspicion may be established by the following:
direct observation of the use or possession of controlled substances;
physical symptoms indicating that the employee is under the influence of a controlled substance;
a repeated pattern of abnormal conduct or erratic behavior on the job;
information provided by a reliable source or independently corroborated; or
evidence recently obtained to the effect that the employee has tampered with a sample in the past.
The reasonable individualized suspicion must be established by at least two of the employee’s supervisors, one of whom must be a direct supervisor. Mere unsupported suspicions do not satisfy the Act’s standards.
Methods of conducting the tests
The Drug Testing Act requires that tests must be conducted by urine samples, except under circumstances in which it is not possible to obtain a sample, and must be administered in accordance with scientifically accepted procedures.
The Drug Testing Act also establishes that the sample may not be submitted to any type of test other than those strictly necessary to detect controlled substances, either by order of the employer or by the laboratory on its own initiative.
Positive results
Test results must be considered confidential information. The Drug Testing Act states that a first positive result will not constitute just cause for dismissal without first requiring and allowing the employee to attend an acceptable rehabilitation program. However, the refusal of an employee to participate in a rehabilitation program allows the employer to impose necessary disciplinary actions, including termination, pursuant to the company’s rules of conduct.
If the test conducted by the employer is positive, the employee must be advised in writing that he or she is entitled to contract another laboratory to obtain a second result from the same sample, and should the employee decide to proceed, the minimum amount of the sample needed must be transferred to the independent laboratory contracted to conduct the tests.
If the second test made at the request of the employee is negative, the employer may suggest three laboratories, of which the employee must choose one, so that a third test can be conducted at the employer’s expense. The result of this third test will be binding on both parties.
Time to attend programs
Employee absences to attend a rehabilitation program may be charged first to sick leave and then to vacation leave. Should sick leave and vacation leave allowances be depleted, the employee is entitled to unpaid leave up to a maximum of 30 days.
Confidentiality
All information and documentation compiled on an employee pursuant to the Drug Testing Act, including the results of any drug tests, must be maintained in a confidential manner and must be kept separate from employees’ personnel files.
Expenses
The Drug Testing Act establishes that the employer must pay the expense of drug testing and must compensate employees for the time needed to submit to tests, which is considered time worked.
The employer also is responsible for the expense of performing a third test when, as discussed above, the positive result of an employer test is followed by a negative result on a test requested by the employee.
Employer liability
Article 4 of the Drug Testing Act establishes a cause of action for employees and employment candidates against an employer under the following circumstances:
the employer takes disciplinary action against the employee or refuses to employ a candidate based on an erroneous test result, and the employer relies on the erroneous result through fraud, fault, or negligence; or
the employer causes damage to the employee or employment candidate’s reputation by revealing test results through fraud, fault, or negligence.
The Drug Testing Act also provides that an employee who suffers damages as a result of an employer’s actionable conduct, and who does not initiate a suit against his or her employer, may seek the benefits of the Puerto Rico Workers’ Accident Compensation Act.
© 2004 Goldman Antonetti