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Monday, July 27, 2020

Transgender Drug Testing

Recently, a client asked me if they needed to adjust their drug testing policy so a transgender employee could choose the gender of the person observing them urinate for a test. Obviously, the person wanted the employee to feel comfortable with who was in the room with them.

First of all, having another employee watch you urinate can be uncomfortable for anyone, for any reason, but it is a requirement for some drug tests in order to ensure that the testee doesn’t bring
in a bag of someone else’s urine to exchange as their own. If the reason is not obvious, it is so they do not test positive when they know they have been under the influence of drugs or alcohol.
So, I did some research and thought it would be good to share this information for other employers, managers, small business owners and HR managers who may have similar questions.

What are the requirements to be an observer for a direct observed collection?

According to the Mandatory Guidelines for Federal Workplace Drug Testing Programs, the Health and Human Services Department evaluated comments and agrees that all observed collections must be conducted in a professional manner that minimizes discomfort to the donor. The Department has revised Sections 4.4(b), 8.1(b), and 8.10 to allow the donor to be observed by a person whose gender matches the donor's gender, which is determined by the donor's gender identity (defined in Section 1.5). The donor's gender identity may be the same as or different from the donor's sex assigned at birth. The Department also revised Sections 8.1(b) and 8.12 for monitored collections, to allow the donor to be monitored by a person whose gender matches the donor's gender, unless the monitor is a medical professional (as described in Section 8.12). The Department disagrees with the suggestion to allow an individual to serve as an observer based solely on their credentials as a physician or health care professional. Such credentials alone would not guarantee that these individuals could appropriately perform the functions of an observer (Section 4.4).

Here are some sample language examples:

  • The procedure for direct observed collection is the same as that for a routine collection except an observer (i.e., of the same gender as the donor) watches the donor urinate into the collection container. Source:
  • The donor is to be observed by a person whose gender matches the donor’s gender, which is determined by the donor’s gender identity. The donor’s gender identity may be the same as or different from the donor’s sex assigned at birth. For monitored collections, to allow the donor to be monitored by a person whose gender matches the donor’s gender, unless the monitor is a medical professional.

Obviously, this is a sensitive topic but like all HR topics, it is important to get it right the first time around to avoid discomfort and risk for the organization.

Additional resources include:

Wednesday, July 1, 2020

HR Training Over Lunch ONLINE in July

I will be co-hosting with the UIS Continuing & Professional Education department a summer HR Workshop Series.  Each week a different topic will be presented covering COVID Workplace topics the first three weeks with the last two weeks focusing on helping employers meet the Workplace Transparency Act compliance training requirement by year-end.  Here is what is in store for the next five weeks for all those who register, grab a lunch, and sit down at their home or office computer.

COVID Training

  • Thursday from Noon-1p.m. 7/9 - Noon -1pm HR2033 Encouraging and Maintaining Remote Employee Engagement – COVID 19 sent over 68% of employees home for at least two months and many of them are still there working day in and day out either permanently or until there is an antidote for the virus.  So in the meantime, what is a manager to do when it comes to keeping those employees motivated, productive, and engaged in the workplace? We will discuss many options that can be incorporated into your workplace that have been successful in others.
  • Thursday from Noon-1p.m. 7/16 HR2031 Managing & Recalling Employees During COVID – It has been a day to day, week to week task to stay up to date with the challenges of COVID-19 in all aspects of organizational management.  Employment issues related to COVID-19 are no exception.  This session will include up-to-date suggestions on topics such safety and health of employees, layoffs and furloughs, time off, and employee documentation requirements.

  • Thursday from Noon-1p.m. 8/6 HR2032 FMLA Do’s & Don’t to include Pre & Post COVID – The Family Medical Leave Act has never been a walk in the park to understand all provisions and amendments but now it’s even more confusing.  In this session we will cover the differences between what you knew about FMLA before COVID and what you should know after COVID (at least through December unless extended) and how it all works! Unofficially Rescheduled from 7/2 so it may not be available for registration yet.

IL Workplace Transparency Act Training

  • Thursday from Noon-1p.m. 7/23 HR2034 & 7/30 HR2035 - Preventing Sexual Harassment in the Workplace (IDHR Compliant for All Employees) – The EEOC has strongly encouraged sexual harassment prevention training for all employers for decades.  However, in most recent years many states had now made it a requirement of all employees.  This training will cover the required training and provide a sign off sheet at the end that the employee can sign and submit to the employer for maintenance as proof of attendance in case the employer is audited by the state human rights agency.