In-House Drug Testing for Employers: Lower Costs & Reduce Risks
A Common Scenario
Your employee gets into a serious accident on the job. Fortunately, she is not injured, but your policy requires that she undergo post-accident drug and alcohol testing. You call your usual laboratory, but it’s 5:30 PM and they don’t answer. You call around and can only find one company to complete the testing, but they are going to charge you $400 to head to your jobsite to complete the test. What do you do?
This is a real situation that occurs throughout the country on a frequent basis. Post-accident testing has a time limit and must be completed as soon as possible, otherwise the test must be canceled. How do employers avoid costly drug and alcohol testing? They move their testing programs “in-house”—meaning they conduct some or all of their drug and alcohol testing themselves—as opposed to “third party testing”—meaning hiring a third-party service agent to conduct testing on their behalf.
While there are some restrictions including that direct supervisors and employees who work together on the same pay grade can’t conduct testing, tens of thousands of employers have found it to be a perfect solution to combat the rising costs of testing, avoid canceled tests due to delay or unavailability of third party service agents, mitigate the risk of canceled or invalidated tests as a result of poor and/or inadequate training, improve program efficiency, and fulfill the employer’s duty of care to its employees.
Costs for In-House Drug Testing
In almost all situations, the cost of hiring a third party to conduct testing will be greater than the cost of performing in-house testing as employers who perform in-house testing utilize employees already on payroll to conduct testing. The slider below illustrates this point by comparing an estimated average base cost of in-house urine drug testing ($15) against the estimated average base cost of third-party testing ($60). However, third-party costs start increasing on the basis of other factors such as on-site/mobile callout fees, after-hours fees, hospital visit fees, interpreter fees, expanded drug testing panels, federal versus state testing protocols, shy bladder procedure fees, confirmation testing costs, and more. Anyone currently managing a program relying on third-party providers knows that costs can easily start rising.
Training Employees to Conduct In-House Drug Testing
The largest up-front cost of transitioning to an in-house testing program is likely the cost of training employees to conduct drug and alcohol testing. This is a one-time cost which will last for five years in most cases before refresher training is required. The individual responsible for performing the tests must be trained on each set of testing protocols for which they will conduct testing. For example, an employer might conduct saliva/oral fluid tests for drug tests under company-authority (Non-DOT), urine tests for its DOT employees’ drug testing program, and breath tests for both DOT and Non-DOT employees’ alcohol tests. This would require a certificate for Saliva/Oral Fluid Testing, DOT Urine Specimen Collection, and DOT/Non-DOT Breath Alcohol Technician training. For this reason, we have formulated three training bundles to prepare employers to transition based on whether they have DOT, Non-DOT, or both DOT and Non-DOT testing programs they would like to move in-house.
Selecting an Appropriate Training Provider For In-House Drug Testing
Just as important as selecting the correct courses to take, selecting a qualified training provider is crucial to the success of any in-house testing program. Regulations change regularly and often multiple times in one year. A training provider’s instructor and content must be current with the regulations to protect your company from liability, stay in compliance with regulations, and to avoid other unintended consequences. A training provider should have a background in both the subject matter and in successful pedagogical practices to ensure that employees who are trained not only receive the necessary information and skills, but that they retain them. Finally, a well-rounded, independent training provider, rather than one that is acting as both a third party administrator/service agent, is more likely to be transparent and provide all relevant information during the training about costs, necessary protocols, and other aspects of a drug-free workplace policy because they have no incentive to try and up-sell the employer on those services.
Furthermore, employers should also be cautious of bait-and-switch offers and other unscrupulous business practices. There are companies that will provide a portion of a required course for a fraction of the total cost but once the course is purchased reveal that additional training and items must be purchased in order to be qualified. For example, DOT Urine Specimen Collector training consists of three necessary components: (i) Basic Information; (ii) Qualification Training; and (iii) Initial Proficiency Demonstrations. Some training providers will offer just “Basic Information” for a minimal cost, marketed as a DOT Urine Collector course, then reveal in either fine print or after purchase that the student must still complete the remainder of the training for an additional fee for an instructor and supplies. Finding a qualified company that can provide all of the essentials for in-house testing is key to the success of any in-house testing program. Other training providers simply publish incorrect information in their advertisements.
 49 C.F.R. § 40.33 (2020).
Our in-house employer drug testing training bundles include everything you need to start drug testing your own employees and maintaining a drug-free workplace.
Avoid Timed-Out and Canceled Employee Drug Tests
Drug and alcohol tests only work to protect the employer and help the employee if they are completed within the specified timeframe. Alcohol is particularly vulnerable to time as it is a volatile substance—something that essentially evaporates and is metabolized in the employee’s system in an extremely short time period—less than eight hours. This is why most federal agencies require a maximum of 8 hours to test an employee for alcohol before canceling the test altogether. In most circumstances, this is something an in-house testing program can control. Immediately following a reasonable suspicion determination or an accident, for example, an employer can have its own Breath Alcohol Technician (BAT) conduct an alcohol test without delay—providing a more accurate snapshot of the alcohol concentration in the employee’s blood at the time of the testing determination. Even if a third party provider is used for this purpose, there will be a delay in either driving the employee to the testing site or having a technician travel to the employer’s jobsite. This delay will almost always result in a lower concentration result for an employee who had been drinking on the job.
Mitigate Risk Associated with Third-Party Drug Testing
Assuming no major delays in testing, there are additional variables outside of the control of an employer that may impact the risk and liability of the employer. For example, driving an employee to a testing site—what happens if there is an auto accident? Once at the testing site, how does the employer know that the testing site is following the appropriate protocols and chain of custody to make the results reliable in court and to comply with state and federal regulations? The employer could verify the testing site’s training credentials, or perform an undercover audit, but even then—does the employer know what to look for without the appropriate training first? If the employer is to be trained to inspect collection sites, it may make more practical sense to conduct the testing themselves in-house and avoid the additional oversight difficulties. Not all laboratory collection sites are created equal.
Improve Efficiency and Workflow
A trained human resources employee can perform pre-employment drug tests as part of on-boarding procedures. A trained safety officer can conduct a post-accident drug test immediately following a qualifying accident. Efficiency is one of the greatest benefits of moving a program in-house as it removes the travel delay involved with either the employee traveling to the testing site or the technician traveling to the employer. Time is money and the sooner an employee can get to work or get back to work, the greater productivity in the workplace.
Fulfill Duty of Care
Since an improperly conducted drug test can result in the loss of a job, disqualification from safety-sensitive duties, obligation to undergo treatment, and other potential burdens such as stigma, most states have recognized that an employer owes a duty of care to its employees in carrying out its testing program. In addition to the potential negative impact on the employee who is subjected to an improperly conducted test, an employer owes a duty to all employees in the workplace who may suffer from a testing program that fails to identify an employee who poses a serious safety risk as a result of substance use or abuse. As a result, employers who breach that duty may be liable for negligence, payment of unemployment claims, payment of workers’ compensation claims, and other possible legal claims. While some employers believe the hiring of a national laboratory or third-party administrator satisfies this duty, laboratories are known to make mistakes and the courts have a mixed view on the subject:
In Mike v. Professional Clinical Laboratory, Inc., a nurse sued the drug testing company retained by her employer alleging negligence and violation of the Oklahoma Standards for Workplace Drug and Alcohol Testing Act. The court held that the statute was intended to protect an employee from employers, not laboratories, and that any error during testing must be a “willful violation”.
In Wigginton v. White, a school bus driver who tested positive for marijuana filed suit claiming that the drug test conducted was unreliable. The court found that the burden shifted to the employer (the Secretary of State) to show that the drug test was reliable and that the employer followed the appropriate DOT regulations. The Secretary’s Medical Review Officer (MRO) did not inform the employee of the required split specimen as mandated in the regulations and therefore the court held the specimen to be unreliable. This is an example of a third-party provider’s MRO failing to follow the appropriate standards resulting in legal liability for the employer.
In Stinson v. Physicians Immediate Care, Ltd., an employee tested positive on his drug test and subsequently filed a claim against the collection site that performed a drug test, claiming it negligently conducted the test. The employee claims that it was the collection site’s negligence which resulted in a false positive. The issue was whether laboratories owe a duty of care to the employee. The court held that although the contract is between the employer, a laboratory still owes a duty when handling employee specimens.
In Shaw v. Psychemedics Corporation, an employee who had been subjected to drug testing by the employer, brought a negligence action in federal court against the laboratory which performed the test. The issue was whether laboratories owe a duty of care to the employee being tested. The court held that a drug testing laboratory’s duty to an employee subject to testing may arise from the laboratory’s contractual relationship with the employer; the lack of privity between the employee and laboratory does not preclude the imposition of that duty.
In Duncan v. Afton, Inc., an employee who was terminated by his employer after a .32 urine alcohol content test result brought negligence action against the company that was hired by employer to collect urine samples as part of its drug testing program. The court held that collection facilities present a risk of harm great enough to hold them accountable and are in the best position to guard against employee injuries arising from its collection and handling procedures.
 Mike v. Prof. Clinical Laboratory, Inc., 450 Fed. Appx. 732 (10th Cir. 2011) (unpublished).  Wigginton v. White, 847 N.E.2d 646 (Ill. App. Ct. 2006).  Stinson v. Physicians Immediate Care, Ltd., 646 N.E.2d 930 (Ill. App. Ct. 1995).  Shaw v. Psychemedics Corp., 826 S.E.2d (S.C. 2019).  Duncan v. Afton, Inc., 991 P.2d 739 (Wyo. 1999).
Cost of Supplies and Laboratory Testing for In-House Drug Testing
In-house testing can cost anywhere between $0.50 and $200 per employee. However, there are many factors that can affect the cost of a drug or alcohol test.
In urine and saliva testing, under Non-DOT protocols employers often have the option to either collect a sample and send it directly to a laboratory by courier to process (known as “collect-only”) or to collect a sample, screen it using a rapid screening device, and then send it off to a laboratory for confirmation if the result is not negative. The idea with instant screening is to try and avoid the cost and time delay involved in laboratory testing, when possible. Purchasing instant supplies in bulk can reduce their cost quite dramatically, going as low or lower than $4.00 per test. Sending a specimen off to the laboratory for confirmation will incur an additional fee and then those results must be reviewed by a Medical Review Officer. It is worthwhile to note that these costs must be incurred whether performing a policy in-house or through a third party. The difference is the fees for the time and travel of the third party specimen collector or breath alcohol technician.
Hair testing is sometimes used under company-authority for pre-employment drug screening in the workplace; however, there are no instant or rapid tests for hair testing at the moment and the cost of these tests are generally three or more times the cost of a urine test, depending on the number of substances tested. The benefit, however, is in the length of the detection window–with a standard 90-day detection window, employers are able to screen employees who have used a controlled substance without a prescription within the previous three months.
The largest savings for moving a testing program in-house is generally in alcohol testing. Once trained, a Breath Alcohol Technician can perform a breath alcohol test on an employee for the cost of a mouthpiece—typically around 50 cents with most devices. There is an up-front cost for the device which can be shared among multiple qualified technicians. The cost for a quality Evidential Breath Testing Device (EBT Device) and all of the necessary initial supplies can range between $1,600 and $4,000 depending on the manufacturer. Although there is an up-front investment, the long-term savings will almost always outweigh those initial costs as these devices regularly last 7-10 years.