When Ryan Braun’s 50-game suspension due to a positive drug test was overturned, it marked the first time a baseball player had successfully challenged such a grievance. Braun won his appeal by showing that there was a technical breach of the chain of custody of his urine sample. Apparently, Braun tested positive for elevated testosterone from a urine sample taken after the first NL postseason game on Friday, October 1, 2011. The collector was supposed to send the sample to the laboratory via Federal Express that evening. He did not do so and, instead, kept the sample in his basement refrigerator over the weekend. The collector thought this was a better option than having the sample sit in a Federal Express warehouse over the weekend. Even though this arguably made sense, holding onto the sample was not compliant with established MLB protocol.
The recent controversy regarding Ryan Braun’s drug sample emphasizes the importance of crafting a drug and alcohol policy that is both legal and will be followed. Unfortunately, many employers implement drug and alcohol testing policies without much thought. When they are faced with an incident involving alcohol or drug abuse they are often disappointed to learn that they do not have in place what they intended. Here are a few common mistakes:
- Stating that you will screen all job applicants but don’t;
- Stating that you will conduct random testing but don’t know what that means;
- Failing to allow for reasonable suspicion testing;
- Failing to state clearly the consequences of refusing to take a drug test; and
- Not being able to prove a proper chain of control.
To protect your business, here a few tips to consider:
- Establish a sound alcohol and substance abuse policy.
- Understand your policy and how it works.
- Distribute the policy and ensure every employee has acknowledged receipt of the policy.
- Use a reputable testing facility. Ask questions of the Medical Review Officer. Know how the testing process will work.
- Ensure the chain of custody of all samples.
- Protect the confidentiality of test results.
Ryan Braun’s successful appeal based on a technicality shows what can happen when you fail to follow your substance abuse testing policies. It also serves as an important reminder that with respect to drug testing, when it absolutely, “positively” has to be there overnight, use Federal Express.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
