Negligence
NEGLIGENCE IN CONDUCTING DRUG TESTING
Due to the complexity of laboratory testing, especially when
required under federal law, there are opportunities for the
laboratory and collection agency to be negligent. Employers
can be liable for such negligence. [1] Issues such as negligent
specimen collection, negligent selection of a laboratory,
breach of confidentiality, negligent test analysis, and failure
to preserve the chain of custody can be raised. A number of
court cases have recently dealt with issues such as these. 
A professsional TPA can oversee laboratory selection and selection
of a collection site. The TPA has experience with the various
laboratories, knows their procedures, which ones have better
credentials and have worked best with employers. The TPA can ensure
that the testing process flows smoothly and that the employer is
protected. The TPA can also assess the accuracy of the laboratories
and how they conduct tests. These types of assessments Legal
liability memorandum - page 6 are usually beyond the expertise
of employers yet they are vital in protecting employers from
liability.
SELECTING A LABORATORY
In selecting a laboratory there are a number of factors to
consider. Of course, if an employer is obligated to comply with
a federal drug testing regulation, the laboratory will have to
be one that is certified by the Federal Department of Health and
Human Services (HHS). [2]
The TPA can inspect the actual physical facilities of
the laboratory and collection site using trained personnel to
observe the organization and procedures for processing
specimens. The TPA can carefully examine the equipment to evaluate
its operating condition and examine maintenance records for each
piece of equipment. The TPA can carefully review the quality
assurance program and examine the records on quality control sample
results.
A quality assurance program measures the accuracy of
performance in specimen accessing, identification of aliquots
(portions of specimens), and test results; availability of current
maintenance records for instruments, records of calibration record
keeping and handling of chain of custody procedures; competence of
the laboratory personnel; and attention to all practices which
assure accurate laboratory results.
Most employers do not have the technical expertise to provide this
review for themselves.
TECHNICAL ASSISTANCE
The TPA can offer guidance about how to implement a drug testing
program, the selection of appropriate cut-off levels, and the
interpretation of results. Its staff should be knowledgeable about
recent developments, scientific or otherwise, in the area of drug
testing.
The federal drug testing regulations require record keeping and
other procedures. A TPA can keep those records and make sure that
confidentiality is preserved. [3]
NEGLIGENCE REFERENCES
1. In Louisiana, an employee can sue for negligent
testing a laboratory hired by his employer. Lewis v. Aluminum
Company of America, 588 So2d 167 (Ct. App. La. 1991); In Louisiana,
when a laboratory mixed up a urine specimen, it was grounds for a
lawsuit. Nehrenz v. T. Sterling Dunn, Jr., 593 So2d 915
(Ct. App. La. 1992); Colorado employee's claim of reckless and
negligent performance of a drug test by a Pennsylvania laboratory
could not be pursued under Colorado Law because Laboratory did not
have enough presence in Colorado. Doe v. National Medical Services,
7 IER Cases 1365 (CA 10 1992); Virginia at will employee could not
claim wrongful discharge on basis of violation of public policy for
negligent drug test since no state statute was implicated. Weaver
v. Coco Cola Bottling Co. 7 IER Cases 1267 (WD Va. 1992); Missouri
drug testing of store manager upheld for refusal to enter drug
treatment after a positive drug test. Claim of negligent drug test
not upheld. Irwin v. Wal-Mart Store, 6 IER Cases 975
(Mo. Ct. App. 1991); In Virginia, tort claims for drug test
preempted by federal law. Clark v. Newport News Shipbuilding and Dry
Dock Co., 6 IER Cases 1102; 937 F2d 934 (CA 4 1991); In Louisiana, a
laboratory performed a negligent drug test by not confirming an
initial test and lack of a chain of custody. Elliott,
Jr. v. Laboratory Specialists, Inc., 588 So2d 175
(Ct. App. La. 1991); Gregory v. Burlington Northern Ry., 638
F. Supp. 538 (D. Minn. 1986) raised issue of negligent
administration of drug tests); In Louisiana, when a laboratory mixed
up a urine specimen it was grounds for a lawsuit. Nehrenz
v. T. Sterling Dunn, Jr., 593 So2d 915 (Ct. App. La. 1992); In Ohio,
negligent drug testing can be grounds for a lawsuit, Rogers
v. Federal Express, 1993 WL 220556 (CA 6 1993).
2. Mandatory Guidelines for Federal Workplace Drug Testing Programs;
Federal Guidelines; Notice, 53 Fed Reg 11970 (April 11, 1988).Legal
liability memorandum - page 8
3. Johnson v. Martin, 6 IER Cases 1329 (CA 7 1991) (employees drug
testing records must be properly maintained); In Illinois, there
was no breach of liberty interest in reputation of employee when
positive drug test results were placed in a personnel file and
were not released.
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