Today, with every drug test situation we must ask: “What Rules Apply?”
In years past it may have been OK to mirror federal rules, but today things have changed. Just over 22 years ago, workplace drug testing got its “big start” when President Reagan issued Executive Order 125634 [2] requiring each federal agency to establish a substance abuse prevention program, including drug testing. In 1987 HHS/NIDA (now SAMHSA) issued its Mandatory Guidelines and in 1988 DOT issued its rules. In 1989 the United States Supreme Court, for the first time, addressed and upheld the concept of workplace drug testing.
Since then the focus of the drug-test industry and employers has been on “federal” rules. (Either SAMHSA or DOT). But, unless the test is federally mandated that focus is misdirected. Since the mid-1980s there have been over 7,000 court cases issued and more than 550 state laws passed that impact workplace drug testing.
As it relates directly to what MROs do there are: 21 states that require non-regulated employers to medically review results; 3 states have times for contacting an MRO different than federal rules; 1 state (OR) requires the MRO to report a positive result to a state agency.
On other issues that affect MRO’s employer-customers: 12 states have alcohol cut-off levels different than DOT; 15 states require all collections to be split; 8 states require a retest of a positive result; 21 states specifically define or prohibit [3] post-accident tests; 30 states specifically define “specimen;” 19 states require written notice of a positive result; 14 states require posting notice of a policy.
These are only some of the many examples of state law issues that MROs and their customer-employers must know to avoid litigation and loss.
Other peculiarities include: one state that requires retest cutoff levels to be that same as initial confirmation levels; one state that limits employee contribution to the cost of split analysis to be no more than the employer paid for the original test; one state that requires the employer to pay for the cost of the split analysis; 3 states that require collectors to register with the state and pay a fee; states that prohibit observed collections and states that require proof of training for instant test administrators.
As you consider these issues keep in mind that 16 states make it a crime or authorize civil penalties for failure to follow state rules.
So, before you act, please ask: What Rules Apply? FN [2] 51 Fed. Reg 180 (Sept 17, 1986) states in part as follows: “The head of each Executive agency shall develop a plan for achieving the objective of a drug-free workplace with due consideration of the rights of the government, the employee, and the general public. *** (b) Each agency plan shall include: *** (5) Provision for identifying illegal drug users, including testing on a controlled and carefully monitored basis in accordance with this Order.” FN [3] CT, RI and VT only permit tests based on reasonable suspicion.
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation’s schools.
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us.
