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Massachusetts and federal courts are pulling back on their rulings in drug and alcohol testing cases and weighing in more on workers’ rights, says a Boston employment lawyer. “These contradictions we see in case law could be used by plaintiff’s attorneys and union attorneys,” when challenging an employer’s action regarding drug and alcohol testing, said Terence E. Coles of the Boston firm of Pyle, Rome & Lichten. Coles and another employment lawyer, John J. Kenney of Burns & Levenson in Boston, spoke Tuesday at a Massachusetts Bar Association seminar in Boston on legal developments in drug testing. HISTORY RULES As part of those court rulings, Coles said, state and federal courts tend to put a lot of weight on having the employer show a specific history of drug or alcohol use on the premises in order to justify testing the employee. It is a tough ethical issue for an attorney who is advising employers how to balance whether to conduct drug and alcohol tests, he said. Employers sometimes face the dilemma of one lawsuit versus another. Employers may face the threat of a lawsuit from an employee challenging drug and alcohol testing or from the public when an employee suspected of using drugs or alcohol gets into an accident and injures others while on the job, Coles said. There is no easy answer to balancing those concerns, he said. Another area that is difficult for employers is determining at what point drug testing is acceptable when an employee uses alcohol or drugs outside work. Coles recommended that management “have all its ducks in order” regarding evidence against an employee because the issue is really whether outside use of drugs and alcohol affects job performance. “There are common sense signs to alcohol impairment that you can use,” he said. Kenney advised lawyers to research the matter before taking steps to impose drug and alcohol testing for someone who is indulging outside the office. If an employee drinks at a tavern on Friday night and Saturday, “it’s their business,” he said. When an employer is “reasonably suspicious” that an employee is using drugs or alcohol while on the job, is management capable of making that determination without training in alcohol or substance abuse counseling? Coles and Kenney both say that management is likely capable of making such a determination based on everyday observations that make sense without having to have specific training in recognizing substance abuse signs. Something obvious, such as erratic operation of a forklift, is cause for such suspicions, Coles said.

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