Can they do this?

foraneman · Nov 13, 2010

It does not really matter if a hair sample is in the Employees manual or not, Employee manuals, like other "official" publications can change or be updated without notice. Sad but true, read the fine print.

Actually it matters a great deal. Read my next post.

foraneman · Nov 13, 2010

All I want to say is the board of nurses are not so nice. And do me a favor and read some of the disciplinary sanctionings for nurses who have refused to submit to testing. They were punished. Refusal is an admission of guilt, it clearly states this in the NCBON practice laws. I did not mean to accuse. I am on probation and never was asked to test, I could have given hair, liver enzymes, doo-doo, and pee but it was my documentation (POOR). Now, here I sit on probation for one year even after the addictionologist refuse to give a diagnoses of substance abuse. I asked ther board why not take my urine, during the time of investigation, her response was,"urine cannot tell the whole story and there are certain drugs which will not show if they are not specifically being analyzed." Now, I pee at my expense,($78/test) whenever my randomized number comes due. I also understand, the invasion of privacy, but privacy is not the issue, hair won't seem to matter either if the board proceeds. Your complete professional history will be investigated past employers/employment included. Once you are marked by the board employment opportunities will dwindle to just about nothing. The employees WILL hire but with substandard pay.

Actually the NCBON 'laws' do not say that at all. Refusal to take a drug test cannot be viewed as an admission of guilt. however it can trigger the board to require you be evaluated by an addictionologist prior to returning to work. But no action can be taken against a license solely because an RN refuses an employer drug test.

sissykim · Nov 13, 2010

Okay miss peer review. She did not submit to the test, and she does not have a job(teminated) for not testing. She was viewed a guilty without a trial or jury of her peers because admistration law is different. Point blank and the ncbon practice act clearly states it is an admission of guilt. You cannot refuse. You can refuse; however, if you wish not to have a job or you wish not to have a nursing career, even as a cna.

foraneman · Nov 13, 2010

Hello All: Ok here is my question. I was called into my managers office and due to the fact that I take frequent bathroom breaks and give alot of meds was asked to provide a hair sample drug screen. I was told that no meds were missing, my charting was impecable and my behavior was fine. I was in shock that they asked me to do this. Either way I told my boss I was not comfortable providing a hair sample because my hair does not grow and is very thin and fall out due to a medical condition (my thyroid was removed when I was 7 yrs old and have taken meds for it, for 27yrs) I have not had my hair cut or clipped in 10 yrs by a professional so I know I am not letting some amateur near my head with sicissors. I did do some research and talked with other people who said they take chunks of hair. 120-240 hairs with each chunk. I dont have that much hair to give. Now I did take it upon myself to provide a urine drug screen and offered to give blood and saliva but that was not good enough for them. I was told that refusing the hair test was the same as having a positive test result and I would not be able to come back to work until giving a hair sample. After 1.5 weeks of waiting for them to call me, I finally called my boss and told her I would not be coming back to work there. She stated it was out of her hands when I refused the test. I never said the word refuse to them I only stated I did not feel comfortable taking the hair test due to my thinning hair and it not growing. My boss said she would send me my separation papers, that I would need them. (not sure what that meant) and we ended the phone call. I feel like I was made to quit. I was also told it was not a policy that had been implemented or put into action just a request from them. However I could not come back to work until i give the hair sample. my questions are, 1. Is this legal? 2. can they report me to the BON 3. would they have been able to legally fire me if I didnt take the test since hair sample was not policy? Keep in mind I took a urine drug screen and offered blood and saliva...I am a wreck now cause I have no job and finding it difficult to find one. Please give me some answers!! Thanks!

Here is the deal. Your employer has a published 'drug free workplace' policy. In exchange for instituting and adhering to that policy they receive a reduced worker's compensation premium...which is a significant chunk of change. If they FAIL to enforce and abide by that policy however they can LOSE their reduced premium and may have to pay back the difference for periods they failed. EVERY state has 'drug free workplace' laws governing employers which are patterned on federal law from the department of labor. Common to EVERY state is the requirement that in order for drug testing to be lawful in the workplace, an EXISTING WRITTEN policy describing the circumstances under which testing can occur, AND THE METHOD OF TESTING TO BE USED must exist. NO changes can be made to such a policy and put in place without first publishing the changes and distributing to employees, and then waiting a reasonable time before implementing so as not to appear to target an individual...say 2 months.

if your employer did not have a written policy which stated they could demand that you submit to a hair follicle drug test, for cause, and what drugs would be tested for, they could not lawfully require one. And they certainly could not lawfully terminate your employment for refusing.

The EEOC is the proper agency to file a complaint with and you should do so.

foraneman · Nov 13, 2010

Here is the deal. Your employer has a published 'drug free workplace' policy. In exchange for instituting and adhering to that policy they receive a reduced worker's compensation premium...which is a significant chunk of change. If they FAIL to enforce and abide by that policy however they can LOSE their reduced premium and may have to pay back the difference for periods they failed. EVERY state has 'drug free workplace' laws governing employers which are patterned on federal law from the department of labor. Common to EVERY state is the requirement that in order for drug testing to be lawful in the workplace, an EXISTING WRITTEN policy describing the circumstances under which testing can occur, AND THE METHOD OF TESTING TO BE USED must exist. NO changes can be made to such a policy and put in place without first publishing the changes and distributing to employees, and then waiting a reasonable time before implementing so as not to appear to target an individual...say 2 months.
if your employer did not have a written policy which stated they could demand that you submit to a hair follicle drug test, for cause, and what drugs would be tested for, they could not lawfully require one. And they certainly could not lawfully terminate your employment for refusing.
The EEOC is the proper agency to file a complaint with and you should do so.

HOLD THE PHONE....STRIKE THAT...SPOKE TOO SOON

North Carolina has a rather unique law which basically gives cart blanche to employers. THE CONTROLLED SUBSTANCE EXAMINATION REGULATION ACT N.C.G.S. 90-87(5) of NC allows employers to test by any reasonable means WITHOUT EVER HAVING A WRITTEN POLICY OF ANY KIND.

I know of no other state that does it this way.

You can be terminated for refusing and it is QUITE legal....sorry.

foraneman · Nov 13, 2010

Okay miss peer review. She did not submit to the test, and she does not have a job(teminated) for not testing. She was viewed a guilty without a trial or jury of her peers because admistration law is different. Point blank and the ncbon practice act clearly states it is an admission of guilt. You cannot refuse. You can refuse; however, if you wish not to have a job or you wish not to have a nursing career, even as a cna.

There is no 'ADMINISTRATIVE law' involved here and she is not entitled to a trial or a jury...this is an employment/labor law issue...there are no trials, hearings or juries..or administrative law.

If you are being monitored by the board a refusal or failure to test is deemed a positive result. There is nothing in the nurse practice act which states a nurse admits guilt if he/she fails/refuses to provide a sample for an employers drug test. You are wrong. Please provide the Act section and quote. Her being 'viewed guilty' by her employer has nothing to do with the NCBON NPA.

Call me Mr. and I do not do peer review...so...

sissykim · Nov 14, 2010

There is no 'ADMINISTRATIVE law' involved here and she is not entitled to a trial or a jury...this is an employment/labor law issue...there are no trials, hearings or juries..or administrative law.
If you are being monitored by the board a refusal or failure to test is deemed a positive result. There is nothing in the nurse practice act which states a nurse admits guilt if he/she fails/refuses to provide a sample for an employers drug test. You are wrong. Please provide the Act section and quote. Her being 'viewed guilty' by her employer has nothing to do with the NCBON NPA.
Call me Mr. and I do not do peer review...so...

Sorry Guy, Sir, Mr.

NC is absolutly different, they practice adminstrative law every day any day. :yawn: The question, "can they do this?" YES YES YES AND YES AGAIN. And I sorry, but the law states again, no test is a dirty test. Trust me. If you are pulled over, asked to do a sobriety road test and refuse, you will be arrested for DWI. Just another example. Don't get it twisted, she did not test, she is not working for her refusal to test. She had it done to her. Sorry OP, did not mean to distract from your situation. I do not know where you reside, please read the disciplinary sanctions on your state board. You may be able to see a pattern of nurses who refused to test. :nurse:

Randomnurse3 · Nov 14, 2010

Well this is the thing...I live in TN. However even though this does not matter to a lot of people I did immediately provide a test that day, a urine test. Not going to get all religious on anyone but it is against my religion to cut my hair and second I have a medical condition that is very traumatizing to me emotionally. Therefore I have been discriminated against and THAT is against the law. This is a free country and noone can be forced into cutting their hair.

jackstem · Nov 14, 2010

Consult a license defense attorney with experience representing nurses before the board of nursing in your state. This incident could have significant, negative consequences on your professional life. Trying to figure all of this out without legal consultation (possibly representation also) is the same as trying to figure out how to deal with some serious neurological symptoms without consulting a neurologist.

Consulting the EEOC will cost you nothing, but will most likely move very slowly.

Please do not try to "fix this" without professional consultation and advice.

The American Association of Nurse Attorneys

Equal Employment Opportunity Commission

Jack

Randomnurse3 · Nov 14, 2010

this is what the eeoc states...

religious discrimination & reasonable accommodation

the law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. this means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

foraneman · Nov 14, 2010

Sorry Guy, Sir, Mr.
NC is absolutly different, they practice adminstrative law every day any day. The question, "can they do this?" YES YES YES AND YES AGAIN. And I sorry, but the law states again, no test is a dirty test. Trust me. If you are pulled over, asked to do a sobriety road test and refuse, you will be arrested for DWI. Just another example. Don't get it twisted, she did not test, she is not working for her refusal to test. She had it done to her. Sorry OP, did not mean to distract from your situation. I do not know where you reside, please read the disciplinary sanctions on your state board. You may be able to see a pattern of nurses who refused to test.

Oh boy. Please suspend what you think you know about this for just a few minutes and at least hear what i am saying.

Administrative Law is an area of law that is very unique and specific in its rules, regulations and procedures. It is the body of law that governs the activities of administrative agencies of government. ONLY GOVERNMENTAL AGENCIES ARE GOVERNED BY ADMINISTRATIVE LAW. EVERY state without exception has such laws in their statutes, commonly called the Administrative Code and the Administrative Procedures Act. The North Carolina Administrative Procedure Act is found in Chapter 150B of the General Statutes of North Carolina.The NC board of Nursing is governed by the NC Administrative procedures Act as is every other board of nursing governed by their respective state's administrative procedures act.

ENTITIES WHICH ARE NOT GOVERNMENTAL AGENCIES ARE NEVER GOVERNED BY ADMINISTRATIVE LAW. NOT IN NC, NOT IN ANY STATE. NC DIFFERS NOT ONE IOTA FROM ANY STATE IN THIS REGARD. The nurse and the nurses employer are not governed by administrative law. The drug testing procedure is NOT governed by administrative law. Administrative law has absolutely NOTHING to do with what went on between the nurse and her employer.

Your example of being pulled over for a DUI and refusing a sobriety road test has absolutely nothing to do with the discussion at hand, NC drug testing laws, OR administrative law. Such an occurrence is governed by the criminal laws of NC. CRIMINAL law allows, specific to DUI/DWI ONLY, that should a suspect refuse to participate in the measurement of driver impairment, which is the only way to prove the charge, then they will be presumed guilty and punished as if the investigation WAS completed and the findings were consistent with impairment. Again, this has NOTHING in the least to do with drug testing in the workplace, and no correlation or inferences can be drawn in ANY manner. NC is no different in this regard from other states either.

You are misstating the law completely. For the last time, the NC Nurse Practice Act DOES NOT state that if a nurse refuses a drug test requested by an employer then they are "guilty" or the test is presumed "dirty". I am not sure how to make this any more clear. I have read the statutes. They contain no such provision. NO STATE has such a provision. Since YOU are animate that this law exists, please provide the citation to the statute and the text of the statute. I cannot present something that does not exist as proof it does not exist. I AGAIN ask that you provide this information.

A link to the NPA of NC can be found here under 'Laws and Rules": North Carolina Board of Nursing

THE CONTROLLED SUBSTANCE EXAMINATION REGULATION ACT N.C.G.S. 90-87(5) of NC is the law which governs employee drug testing in NC. It is NOT administrative law or part of the administrative procedures act. It is a North Carolina General Statute (NCGS) which provides that an employer MAY terminate an employee if the employee fails to provide a urine, hair, blood or saliva sample for testing when requested. The law further states that the employer NEED NOT have any written policies in place for drug testing whatsoever. THIS is the are in which NC differs from other states. This law applies to EVERY private employer/employee in the state, does NOT single out nurses in any way, and has NOTHING to do with the board of nursing.

The board of nursing may NOT act against a license on the sole basis that an individual refused a drug test. Like any other complaint or concern brought to the board, should an employer file a complaint stating that they asked a nurse to provide a 'for cause' sample for testing and the nurse refused, the board may elect to investigate, and they may even view the refusal with suspicion that the individual would have tested positive. However, ADMINISTRATIVE LAW requires that they investigate, present evidence and witnesses at a hearing, and allow the nurse to obtain counsel and present a defense, cross examine evidence and witnesses, present her own evidence and witnesses, at the hearing. If such a law existed as the one you insist is on the books, no hearing would be allowed or necessary. The law would be the law...if you refused a drug test you are guilty, end of story. This would violate constitutionally protected rights of due process, including and opportunity to be heard, not to mention the Administrative Procedures Act which demands a hearing be held in all contested cases.

If a nurse is on probation or under a consent agreement they are very often required to participate in a structured monthly random urine drug screen monitoring program. They have already been found to be 'guilty' of an infraction under the nurse practice act. Their probation/monitoring is in place to make sure that whatever issues existed, they have been resolved and the nurse can return to safe practice. As part of the probation agreement the nurse agrees to abide by the drug testing stipulations and further agrees that any missed or refused test will be considered a 'positive' test and that their license to practice may be suspended immediately, as if the test had come back positive. In this instance the drug testing is a requirement OF THE BOARD, rather than a requirement of an unrelated third party over whom the board has no authority or control. This ability of the board to act directly on a refused test is limited to this situation ALONE.

enchantmentdis, BSN, RN · Nov 14, 2010

Now you're out of a job in this economy. I'd rather be bald then not have a job. In fact i work with a bald social worker (female) and she looks great, and my hair is also thinned due to thyroid disease. Just should've given the darn hair sample. My goodness, why split hairs (pardon the pun) about something like this. Your hair would eventually grow back. Wow, it amazes me how many nurses are willing to quibble about stuff like this and then lose a job over it in this retched economy. Good luck finding another job.