Drug test failure/propriety information

TeresaBlank

This question could cover all types of issues, so bear with me while I ask about just one. We are a small (35) non-union company who terminated an employee 22 months ago when she failed a drug test (it was off the charts). At the time we did not have a good drug testing policy, just a very vague "if you do 'em, you'll be tested" type. We have found that her attorney has contacted the testing lab wanting a copy of the results, which they cannot find (we have a copy of the test results). Now my operations manager wants me to include something in our hand book about "proprietary information" as regards current employees giving out information about employees/past employees (in case she or her attorney or any investigator should ask.) Doesn't he have his issues a little messed up? Proprietary information is about company-type issues, right? What can a company put in their hand book that limits what employees can talk about when it comes to other employees/past employees? HELP!

P.S. I have been trying to get a good drug testing policy in place for MONTHS and now I get to say "I told you so".

PAhr

Whoa, whoa, whoa!!! He cannot do that unless he wants another lawsuit. This one would be for retaliation. Even if her lawsuit is frivilous, the employees have a legal obligation to testify to any court ordered depositions, trials, etc... . If he chooses to terminate an employee for giving out this information he will violate public policy. The only information he can limit the employee's to talk about would be any information that is considered confidentially necessary to the runnings of his buisness such as manuals, manufacturing processes, product construction, etc. I hope you explain this to him.

Rexxies

You're correct--proprietary information is primarily concerned with company financial, product, testing information. What you want to create, even with a small company, is a confidentiality policy.

However, what the Ops Mgr wants is not logical--if the company is contacted, have your attorney respond. Don't respond directly unless you don't have benefit of legal counsel. But, you are not required to give up the information unless requested through subpoena or because the employee has filed a lawsuit (civil, ADA or whatever). The former employee can request a copy of her file and you are obliged to give her a full copy of everything except for references from former employees.

However, if she failed a drug screen and you, therefore, got her in a 'for cause' situation, it doesn't matter how loose the guideline was. I'm assuming here that someone suspected she was under the influence and that's why she got tested. She fails, she fails...the states have individual limits on the 'level' consider positive vs. negative. Here in Mass. it's .04--anything above it is positive. So if you've had 1 beer an hour ago, you'd probably come in at .03 & be negative according to state statute. She's looking for a loophole and as long as you treated her the same way as everyone else, they'll be hard pressed to find a loophole except potentially under ADA guidelines. But even under ADA if you are ruled an addict, you cannot be actively using (either alcohol or drugs); if you are, the courts have said too bad.

Good luck. But get that confidentiality policy in place and have everyone sign.