EMPLOYER/DER INVOLVEMENT IN SHY BLADDER COLLECTIONS; WHAT DO YOU DO?

Recently, a number of cases came to light which indicate that employers are still not clear on what to do in certain situations related to shy bladder collections.

Typical scenario: employee cannot contribute a sufficient quantify of urine thereby starting the “shy bladder” process. This means that the employee has up to three hours in which to contribute a urine specimen of sufficient quantity (40mL). The clock starts ticking and the employee may make several attempts to provide a specimen. Trouble creeps in when a couple of hours have gone by; the employee cannot provide enough urine and is starting to get anxious.

In some cases, the employee calls the employer/DER and states that there is a problem providing a specimen. Frequently, the employer/DER tells the employee to go back to work or home and come back the next day to provide a sample.

In other cases, the clinic is about to close and the employee only had two hours in which to provide a sample. Either the clinic or the employee calls the employer/DER, presents the situation and the employer/DER directs the employee to return to work or go home and come back the next day.

Frequently, employers call and ask how to categorize the test conducted the next day, i.e., if the original was a random should the test the next day also be considered as random. This indicates that they have no clue as to how the process is supposed to work or what are the regulatory requirements.

Here are a few items to address before you, as an employer, get caught in a bind. In most cases, the employer controls when an employee is scheduled to go for a drug test. The rules direct testing to be conducted spread throughout the work shift. In other words, some tests should be conducted at the start of a shift, others during the workday, and some at the end of the work shift. However, as the employer, you should know the time your collection sites are operational. So, if you direct an employee to go to a clinic for a collection, it would be advisable to send the employee at a time that would provide at least three hours to complete the collection before the clinic closes. For example, if the clinic closes at 6:00pm you should try to get your employees in for a collection no later than 3:00pm in case there is a shy bladder and a requirement to provide at least three hours for the employee to provide a specimen kicks in.

Of course, an alternative is that you or your Third Party Administrator make provisions for the clinic to stay open past their regular hours should a shy bladder situation arise. Then you can send your employee for a test at any time the clinic is open. You can also make provisions that should your main collection site/clinic close, the employee can be transported (under supervision) to another clinic that is open longer hours. Under no circumstances should you authorize your employee to leave a collection site before the three hours for collection have expired. Should that happen, you must immediately send the employee back to the clinic for a collection – as soon as you are aware of the situation or the next day. Do not postpone this to later in the day or the second day. And yes, this would be considered the same test type, i.e., if the original test was a random test, then it still remains a random test. Of course, an auditor will take a major exception to this and you need to be prepared on how to respond to why you told the employee to abort the original testing process.

A follow-up on a previous issue: DOT still has not received a court decision on the whole issue of mandatory direct observation for return-to-duty and follow-up testing. They are awaiting a court decision and as soon as this is forthcoming, everyone will be notified.