Creating Drug & Alcohol Testing Agreements
In Divorce & Child Custody Situations
When drug or alcohol abuse is alleged in a divorce situation involving children, demands for testing are usually made as part of any divorce and custody agreement. Crafting a solid agreement regarding drug and alcohol testing for divorcing parents is critical to the safety and well being of the child(ren) and provides peace of mind and a level playing field for the parents.
In order to be effective, the agreement should cover the following seven criteria:
- Frequency of testing
- Notification for testing
- Specimen type to be tested
- Drugs to be tested
- Reporting results
- Consequences of a positive result
- Payment responsibilities
Frequency of testing:
Your agreement should include guidance as to how often testing will be conducted. Frequency of testing can be established in a variety of ways including:
- Scheduled Testing (weekly, bi-weekly, monthly)
- Random Testing (random notification by third party)
- Pre-Custody
- Post-Custody
- On Demand
Notification for testing:
The agreement should clearly state how the party to be tested will be notified. It should also state how long they have to present for the testing requested – typically same day. To avoid parties claiming that they were not notified properly, using a third party such as Carolina Testing or an attorney to make notification is highly recommended. Carolina Testing notifies parties by phone, email and text message alerting them to the testing request and requirements.
Specimen type to be tested:
What specimen types can be tested? This should be included in the agreement and should include all available specimen types: urine, hair follicle, saliva, breath (alcohol), blood
Urine and saliva tests can detect recent usage. Urine testing should specify whether the collection is to be observed or unobserved. Hair follicle tests can detect use up to 90 days for drugs and alcohol. Breath alcohol testing can detect current impairment while blood PETH tests can detect 3 weeks of use.
Drugs to be tested:
This section of the agreement should not limit the drugs that can be tested as a user may opt for drugs that are not being tested in order to attempt to avoid testing positive. Drug testing panels today can include a wide variety of drugs and substances of abuse depending on your needs. A simple 5 panel drug test to a comprehensive drug detection test can be ordered as long as there are no limitations listed in the agreement.
Reporting results:
Typically, both parties should receive the results at the same time. Attorneys of record may also be selected to receive results as well as the court if required. The agreement should require that authorization to release results to all parties must be provided by the person required to test. Failure to provide such authorization would be equivalent to a positive drug test.
This section should also address whether the lab test results will be reviewed by a Medical Review Officer or if the results will be required direct from the laboratory. A medical review of laboratory results may negate a positive laboratory result if the donor has a prescription for the drug in question. It is our recommendation that this type of testing be completed without medical review and that the results be reported direct from the laboratory.
Consequences of a positive result:
This section should clearly articulate what happens in the event that a person tests positive. Visitation may be suspended for 30 days, may require supervision, be revoked or any other consequences that the parties may agree to. Additional consequences may require mandatory counseling, therapy, treatment, etc.
Payment responsibilities:
The agreement should clearly state the payment arrangements for testing. Common scenarios for payment include:
- The person taking the test pays
- The person requesting the test pays
- Test costs shared equally
- The person requesting the test pays, but will be reimbursed if the result is positive.
Conclusion:
Carolina Testing is frequently contacted by lawyers and divorcing parents to advise on how best to establish a drug and/or alcohol testing program for all parties involved. This article is to assist attorneys and parents in understanding the key elements that need to be built into drug and alcohol testing agreements in divorce and custody related cases to provide fair and equitable testing for all involved. If we can be of further assistance in this matter, please CONTACT US anytime.
The National Institute on Drug Abuse
in many drug policies that is employed by companies looking to establish a safe, secure and healthy environment for their employees, colleagues, customers and community. Reasonable suspicion simply means that there is reason to believe the employee is under the influence of drugs or alcohol while on the job. This belief or suspicion must be based on objective factors, such as the direct observation of an employee’s appearance, speech, behavior, odor or other conduct. Reasonable suspicion should not be based on hearsay or rumors and should not include behavior or conduct that is simply attributable to some type of common error. For example, dropping something on the floor, being late to work or being in a bad mood could have many explanations. While these actions may cause a good supervisor to pay closer attention to this particular employee, they do not rise to level of reasonable suspicion of drug or alcohol use. Closer observation may lead to other observations such as slurred speech, unsteady balance, dilated pupils, excessive perspiration, etc – all of which could lead to reasonable suspicion testing.
Professional training of supervisory staff is the best way to learn about reasonable suspicion testing. In some industries, such as DOT regulated companies, supervisor training is required. Training should teach supervisors about the types of drugs that are tested for as well as the signs and symptoms indicating possible use of these substances. For instance, cocaine is a stimulant and makes everything in the body speed up. Those under the influence of cocaine may be hyper, have rapid movements, be talkative and have dilated or enlarged pupils. These are the types of signs a supervisor should be trained to look for as reasonable suspicion of the use of cocaine, or any other stimulant like meth or crack. In addition to learning more about the drugs and what to look for in the use of such drugs, supervisors should also be trained in what constitutes reasonable suspicion and how to properly identify and document direct observations. Supervisors who are not trained to identify and observe the signs of use associated with drug and alcohol may expose the company up to significant liability, discrimination claims and other legal issues.
– either at the clinic location or having the collector come to the company site. In the case of drug tests, laboratory confirmation and medical review of the test results should be an absolute requirement to avoid any mistakes or erroneous results. For alcohol tests, a confirmation test of alcohol levels should be conducted by a certified Breath Alcohol Technician for complete and accurate results. All positive results should be submitted to the employee in writing within 24 hours of receiving the results. A reasonable suspicion situation requires careful handling of documentation, personnel records and potentially sensitive test results. All employees having access to this information have a legal responsibility to maintain the strictest and highest standards of confidentiality throughout the entire process.