Drug Testing the Law State-by-State Archives

Know the Basic Types of Drug Testing

February 8, 2011 by Rebecca Shafer, J.D. 2 Comments

Most employers understand the importance of drug testing to prevent both workers compensation accidents and accidents that damage property. When an employee has a work related accident resulting in injury, a drug test should be a part of the immediate medical care. The reasons and the importance of drug testing are easy to understand. The types of drug test and how they are administered is more technical.

A drug test involves taking a biological specimen and having it analyzed for the presence or absence of specific drugs or their metabolites (the products of metabolism). The biological specimen can be urine, blood, hair, saliva or even sweat. (WCxKit)

The most common drug test is the urine drug screen. This typically involves collecting a urine specimen in a cup specifically designed for this purpose. The cup comes with a cap that seals and the cap is taped down with tamper resistant tape. A label with the either the employee's name or a unique number assigned to the employee is used to identify from whom the specimen was obtained. The urine specimen is delivered to the laboratory where it is screened for drugs.

At the laboratory, the most common drug screen is the one required by the federal government for commercial class drivers licenses. It is referred to as the SAMHSA 5 panel. (SAMHSA – Substance Abuse and Mental Health Services Administration). The five substances tested for are:

1. Cannabinoides (marijuana, hash)

2. Cocaine (cocaine, crack, benzoylecognine)

3. Amphetamines (amphetamines, methamphetamines, speed)

4. Opiates (heroin, opium, codeine, morphine)

5. Phencyclidine (PCP)

To perform the testing, the specimen is split into half. The first half goes into an analyzer that measures the presence or concentration of a substance in the urine. If the test shows the presence of a drug, the second half of the urine is test using a gas chromatography method (which means they separate the urine into the various substances within it). The test results are then reviewed by a physician for confirmation of the results. If the test results are negative, the employer is advised the drug test was negative. If the test results are positive, the employee is contacted to see if there is any valid reason for the test result to be positive – for instance a prescription drug.

A drug test that is more accurate than the testing of urine is a blood test. The blood sample is drawn from the employee, labeled and sent to the laboratory where it is placed in centrifuge where the blood plasma and blood cells are separated. The plasma is then tested for the presence of illicit drugs. Blood testing is not commonly used as the collection method is considered more intrusive and it is most expensive method of drug testing. However, it is considered the most accurate drug test.

In the last decade the use of hair in laboratory test for the detection of illicit drugs has developed into a reliable forensic toxicology method that has been approved by the courts. Once ingested, cannainoids, cocaine, amphetamines and opiates are metabolized by the body. Their breakdown products enter the hair root where they are deposited and remain until the hair grows out and is cut off or the hair falls out. Except for the abuse of alcohol, hair is considered a very reliable indicator of illicit drug use up to 90 days after the drug was ingested.

As most illicit drug users know the urine test and blood test are accurate for only recent use of the illicit drugs, they will often try to delay their drug testing until their body has had an opportunity to eliminate the drugs. Time is not the only factor that determines whether or not the drug test will reflect recent use of an illicit drug. Factors that impact the drug testing include the type of drug used, the body mass, the metabolic rate, the age of the user, the overall health of the user, the amount and frequency of use, and with urine drug test – the urine pH.

A urine drug test has a longer detection window of time then a blood test. Urine test are accurate for cannabis for a minimum of 3 days and up to 7 days, but up to 30 days for heavy users or users with high body fat. Urine test are accurate for cocaine for a minimum of 2 days and up to 5 days. Urine test are accurate for amphetamines for a minimum of 1 day and up to 5 days (except for methamphetamine, it is accurate for 3 to 15 days). Urine tests are accurate for codeine for 2 to 3 days, heroin 3 to 4 days and for PCP for 3 to 7 days for a single use, but up to 30 days for chronic users of PCP. (WCxKit)

According to the Tennessee Department of Labor, thirty-eight to fifty percent of all workers compensation claims are related to substance abuse. How the illicit use of drugs will impact the work comp claim varies tremendously from state to state. In approximately 40 states the employee's workers compensation benefits can be denied or reduced for being under the influence of drugs at the time of accident.

Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com . Contact: RShafer@ReduceYourWorkersComp.com .

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

How to Build a Workplace Drug and Substance Abuse Policy

January 30, 2011 by Rebecca Shafer, J.D. Leave a Comment

Per the US Department of Labors Occupational Safety and Health Administration (OSHA), 74.8% of the illicit drug users are either employed full time or part time. As illicit drugs and alcohol can remain in a persons body for hours or even days after they are used, the person with a substance abuse problem can come to work still under the influence of the drugs or alcohol. Per OSHA, between 10% and 20% of the workers who are killed on the job test positive for drugs or alcohol.

A workplace substance abuse policy should be a part of every employers risk management program. The prevention of workplace substance abuse will protect the safety of all employees, and reduce the cost of workers compensation. (WCxKit)

An overall approach to drug-free workplace should include five elements. They are:

1. Employee education

2. Supervisor training

3. Drug testing

4. Employee assistance

5. A written substance abuse policy

A written workplace substance abuse policy should have a stated goal and purpose. The goal and purpose can be stated as “protecting the safety and health of the workplace” with recognition of drugs and alcohol as being a danger to all employees.

The workplace substance abuse policy should clarify what employees are covered by the policy. To prevent the policy from being ignored, it should apply to all employees, including management. Otherwise, it will be seen as having different standards for 'the workers and 'the management'. The policy should clearly state when it is applicable – all hours on the job and when representing the company in anyway.

The prohibited behavior needs to be clearly stated. The workplace substance abuse policy should state that it is a violation of the policy to use, sell, trade, posses, or to offer to sale illicit drugs, alcohol or any other intoxicants in the workplace. The prohibited behavior should also include being under the influence of illicit drugs, alcohol or any other intoxicants while in the workplace.

The workplace substance abuse policy must clearly state the employer has the right to search for substance that violate the policy. It should state that by entering the premise of the employer, all parties consent to searches and inspections. The right to search should be stated as applicable at any time and to include clothing, desk, lockers, wallets, purses, briefcases, lunchboxes, vehicles and equipment.

For the workplace substance abuse policy to be effective, it must contain a drug testing component. The drug testing portion of the substance abuse policy should outline how the testing will be administered and when the test can be given – pre-employment, random, post-accident, reasonable suspicion, periodic, etc.

The drug testing portion of the substance abuse policy should state what the consequences are when an employee test positive for drugs whether it is suspension from work until the employee has completed a stated drug treatment program or termination of employment or other disciplinary action by the employer. For job applicants, the failure to pass the pre-employment drug testing should result in the job offer being withdrawn.

Some employers encourage employees to voluntary seek assistance with their drug or alcohol problem. The workplace substance abuse policy can recognize there is treatment available for the addiction and that rehabilitation is possible. The policy can state the employer encourages the employee or family member with an addiction problem to seek the necessary assistance.

The workplace substance abuse policy should advise that all information received by the employer is considered confidential information and will not be shared with anyone who does not have a legitimate need for the information. It should make the appropriate exceptions for medical care, law enforcement and management needs.

The policy needs to define the responsibilities of the both the employees and the employer in maintaining a drug-free workplace. This would include employees not reporting to work with any illicit drugs or alcohol in their system and management's responsibility to maintain a safe work place and protect the employees from any employee under the influence of illicit drugs or alcohol.

Communication between the employees and the employer is essential for the workplace substance abuse policy to work. All employees should be provided a copy of the written policy. The policy should be reviewed in orientation with new employees and be incorporated into safety meetings. All employees should receive a copy of the substance abuse policy at least annually. Information on the availability of treatment for alcohol and drug addiction should be made available to everyone. (WCxKit)

As many small businesses will not have the time to carefully write a workplace substance abuse policy, the U.S. Department of Labor provides a free Drug-Free Workplace Policy Builder at www.dol.gov/elaws/asp/drugfree/drugs/screen2.asp . At their website you go through a checklist of features you want in the workplace substance abuse policy for your company. When you finish the checklist, it has a neatly organized, simple but precise workplace substance abuse policy that you can print for use in your company. One of the options when using this interactive program to build your policy is to include a drug testing program; we strongly recommend you do so. By having a workplace substance abuse policy you will have a positive impact on your cost for workers' compensation.

Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. www.LowerWC.com
Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.

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Filed Under: Communication with Employees, Drug, Alcohol & Impairment Testing, Implementation and Rolling Out Your Program, Seminars and Courses, WC 101 Tagged With: Alcohol & Impairment Testing, Drug Free Workplace, Drug Testing the Law State-by-State, OSHA, Workplace Drug Testing

Challenges When Testing for Prescription Drugs in the Workplace

November 4, 2010 by Senior Editor Leave a Comment

Recently in the “Commercial Appeal” (TN), quoting from a New York Times article about the trickiness of drug testing when workers take prescriptions drugs the article ended with this quote.

“Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse, employers cannot afford not to address this issue.”

Indeed drug testing in the workplace is challenging given the fact so many people take illegal drugs. Employers have every right to discover who these workers are before a serious workplace injury occurs.

However, the quote seems to be saying if a person is taking a legal prescription drug(s), albeit those possibly causing impairment leading to an accident in the workplace, such legal use qualifies as “prescription drug abuse.” (WCxKit)

It is a fine line between maintaining a drug-free workplace understood to mean illegal drug usage and firing someone for taking prescription drugs – some even for injuries sustained in the employer’s workplace.

Statistics show (Quest Diagnostics) of 500,000 drug tests, use of prescription drugs rose 18% between 2005 and 2009. Opiates were found in those workers following an accident at four times the level than when they were first hired.

That being said, a leap cannot be made from high usage of prescription drugs to abusive usage of prescription drugs. Some people abuse. Others take their medications appropriately and, yes, the drug is found in their system at testing.

The real questions are: Are workers taking legal prescription drugs showing evidence of behavior as a result of their medication(s) putting them at a higher risk of a workplace injury? Are workers taking prescription medication actually having more injuries? In other words, is there a quid pro quo?

Employers must continue to test for drugs in the workplace. In addition to the drug-free policy, they must implement a plan for working with those taking prescription drugs and evaluate each individual on the basis of what is found during the test and the behavior of the worker, taking steps to intervene if unsafe behaviors or potential for accidents are found.

The drug-testing plan needs openness and communication with employees taking RX meds. A policy must be set as to what will be tolerated within the guidelines of the prescription dosages. Employees must also be open and honest about medications they take — opiates or not — at the time of drug testing. It’s common knowledge diabetics may experience inconsistent affects from both their disease and the medication they take, even when taken correctly. No employer would be allowed to fire a diabetic if deemed at risk for an injury. They would be required to accommodate.

Someone taking two Vicodin twice a day, morning and evening, would be expected to have a fixed level of the drug in his/her body. If at testing a person is found to have much high amounts, that’s the time for the employer to step in.

Steps an employer may consider are counseling, re-assigning the person to a safer job, working with employees and their physicians to substitute or alter the dosage during the workday. Check the laws in your state and the regulations of the American with Disabilities Act. (WCxKit)

It’s much wiser for employers to be on a sure footing before firing workers who “fail” drug tests for taking legitimate medications than to fight a lawsuit. Indeed, if lower worker comp costs are the goal, lawsuits blow cost right up the scale, big time.

For more information visit: http://reduceyourworkerscomp.com/drug-testing-state-laws.php#axzz14LwH8dOJ

Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing.
Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

Filed Under: ADA (Americans with Disabilities Act), Drug, Alcohol & Impairment Testing, Employment Law Issues Tagged With: Drug Free Workplace, Drug Testing the Law State-by-State, Workplace Drug Testing

Medical Marijuana Pain Management and Workers Compensation

March 24, 2010 by Robert Elliott, J.D. Leave a Comment

When the Administration announced early last year it would not prosecute law-abiding marijuana growers and sellers in states with medical marijuana laws, the number of medical marijuana dispensaries in California exploded. There are now approximately 2,000 medical marijuana dispensaries in California.

California is not the only state with legal medical marijuana, it is also legal in 13 other states –Alaska, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Twelve other states are in various stages of pending legislation on the use of medical marijuana.

In the states were medical marijuana is approved, it is used in the treatment of cancer, glaucoma, HIV/AIDS, nausea, chronic or severe pain, seizures and some other medical conditions. Chronic or severe pain is the medical condition that has triggered work comp claims testing the boundaries between medical marijuana and workers' compensation. (Of the 14 states approving medical marijuana, only Maine does not permit its use for chronic or severe pain).

In a recent California claim where a work comp claimant was seeking approval to use medical marijuana to treat his work place injury, the judge hearing the case would not make a decision. The judge decided to let an independent medical evaluator determine whether or not marijuana should be provided to the claimant. The independent medical evaluator ruled the claimant had other medical options available to him and denied the use of medical marijuana in treatment of the claimant's work comp claim.

While the California claim did not result in the claimant being prescribed marijuana for his work comp injury, it created a bad precedent. It set the stage for other claimants and their attorneys to petition for the use of medical marijuana. Given a different set of facts, the next independent medical evaluator may decide it is an acceptable treatment in work comp claims.

Colorado and Michigan are two additional states where employees have raised the question of medical marijuana for treatment of their pain conditions.

As it becomes more acceptable for doctors to prescribe medical marijuana for pain management, the potential for its use in the field of workers’ compensation grows. The argument for medical marijuana will be that it is less addictive than heavy narcotic medications like Oxycontin and a lot cheaper.

IF medical marijuana becomes an acceptable treatment for pain management, a “side effect” of medical marijuana being “legalized” for workers compensation will be the increase in the number of questionable or fraudulent work comp claims. There will be questionable claims made for back pain or other subjective injuries where the employee's sole purpose in filing the work comp claim is to obtain marijuana paid for by the employer's work comp insurance.

The introduction of medical marijuana into the work comp system will also create various other problems for the employer. Additional problems would include: (workersxzcompxzkit)

1. Who will control the dosage amount and the frequency of use?

2. Who will pay for the prescription?

3. How will employers enforce a drug-free workplace program?

4. How will safety programs be affected?

So far we have only seen the tip of the medical marijuana iceberg. The topic of medical marijuana for use in the treatment of work comp claims will continue to be pushed by those actively using marijuana (often before the work comp injury occurs). It behooves employers and those involved in the processing of work comp claims to watch for further developments in this area over the coming year.

Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.

Filed Under: Drug, Alcohol & Impairment Testing, EEOC Discrimination Laws, Employment Law Issues, Medical Issues Tagged With: Drug Testing the Law State-by-State, Medical Issues, Medical Marijuana

Medical Marijuana New York Workers Comp and Employers

February 2, 2010 by Attorney Theodore Ronca Leave a Comment

Currently, 26 states have passed, or have pending, laws on medical use of marijuana. In New York, two bills, A.9016 and S. 4041-B, are pending which would permit medical prescriptions for marijuana.

The consequences for employers and workers’ compensation are far reaching. Some have said it is possible marijuana will be a substitute for the far more expensive and addictive Oxycontin – a substitution that might be welcomed by some carriers. However, there is a near certain potential for work comp claims being filed solely to obtain free marijuana.

The claims, most likely, will be “medical only” claims with little lost time. Such claims rarely receive much attention by the Workers’ Compensation Board – especially when the medical bills are minimal. The cost of adjudication is multiples of the underlying charges.

Senate bill, S. 4041-B, prohibits an employer from discriminating against an employee, or leased employee, for using medical marijuana. The bill also provides that medical marijuana may not be used publically or in any area where tobacco is prohibited.

The Senate bill permits prescribing for certain conditions, of which chronic pain is a qualified condition. This effectively means that a determined employee will certainly be able to find a facility willing to issue a prescription.

The social problem for the employer’s workplace will be the patient who may not openly use marijuana but is too open in boasting of its availability, free, to some employees. Added to that will be the protections against discrimination – which are quickly discovered by many people. (workersxzcompxzkit)

The chief problem for employers will be the legitimization of a practice formerly considered a crime and not protected by the Americans with Disabilities Act. There will be impacts upon drug-free workplace initiatives and a dilemma if a “patient” finds a way to obtain more marijuana than has been prescribed.

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers' compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.

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Filed Under: ADA (Americans with Disabilities Act), Drug, Alcohol & Impairment Testing, Medical Issues, NY Workers Comp Issues Tagged With: Drug Testing the Law State-by-State, Legal Issues: Employers & Employees, New York Workers Comp Issues

A Drug Free Workplace and Workers Comp

August 18, 2009 by Robert Elliott, J.D. Leave a Comment

Department of Labor (DOL) Gears Up for “Drug-Free Work Week”

DOL has designated October 19 through 25, as “2009 Drug-Free Work Week.” See their website for a variety of resources for employers, workers, associations, unions, neighborhood groups, and community coalitions to take part. http://www.dol.gov/asp/programs/drugs/workingpartners/DFWW-Introduction.asp

An annual event, drug-free work week highlights the productivity, safety, and economic benefits of drug-free workplace programs which, as we all know, reduce the costs of workers’ compensation and provide a better, safer environment for all employees. In some states, a company recieves a discounted premium when they implement a drug-free workplace program. Check with your insurance broker to see if you are in these states and whether your company qualifies.

Working drug free works is DOL’s major promotional goal because:

1. Accidents are prevented.
2. Workplaces are then safer.
3. Productivity improves.
4. Costs are reduced.
5. Encourages people with alcohol and drug problems to seek help

DOL reports significant data on drugs/alcohol and the workplace.

1. 75% of the nation’s current illegal drug users are employed.
2. 3.1% say they have used illegal drugs before or during work hours.
3. 79% of the nation’s heavy alcohol users are employed.
4. 7.1% say they have consumed alcohol during the workday.

Employers MUST encourage employees with drug and/or alcohol problems to seek help because recent research by DOL shows “it’s a message people need to hear.” (workersxzcompxzkit)

A Drug-Free Work Week Tool Box and links to ideas for various types of organizations are available on the DOL website.

Also see http://reduceyourworkerscomp.com/drug-testing-state-laws.php for the only FREE set of drug laws covering individual states.

Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-786-8286.

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Filed Under: Drug, Alcohol & Impairment Testing Tagged With: Drug Testing the Law State-by-State

Drug Sample Collection Must Be DIRECTLY Observed for Some Industries

August 5, 2009 by Atty Bill Judge Leave a Comment

An Employer ALERT

The Department of Transportation (DOT) announced that as of August 31, 2009 the new direct observation rules must be observed. Those rules require (previously permitted) regulated employers to directly observe every collection upon return to duty or follow-up to a violation.

Under Section 40.67(b)(i) the direct observation includes a requirement the donor “raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show [the collector] by turning around, that they do not have a prosthetic device.”

A drastic rule change? Yes, it is. Collection providers are scrambling to prepare and some are going to stop providing collection services all together.

WARN YOUR EMPLOYEES

But, one key point is being missed: employees must be warned! In my opinion, all employers would be well advised to not only place a new warninig about this change into their policies but also to post notice of this change in conspicuous places throughout their workplaces.

Recent court cases (e.g. McVey v. National Organization Services, Inc., Munn v. Kraft Foods, Inc.) have made it clear that complete knowledge of a company’s program and warning of the consequesces of violating that program are essential.

Failure to provide adequate warning could cost an employer in a wrongful discharge action, unemployment case or workers’ compensation challenge.

Additionally, it must be remembered that this change impacts not just DOT-regulated employers but, depending on employer choices and in certain industries, employers in 10 states (AL, CA, CT, DE, MD, MT, ND, OH, TN, VT) MUST follow DOT rules. Any employer that has chosen to follow DOT rules or negotiated doing so in their collective bargaining agreemant would also be impacted by this rule change.

Attorney Judge, JD, LLM can be reached at The Center for Drug Test Information, 877-423-8422.
info@centerfordrugtestinformation.com http://www.centerfordrugtestinformation.com/

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Filed Under: Drug, Alcohol & Impairment Testing, Litigation Management, Union Issues Tagged With: Drug Testing the Law State-by-State, Legal Issues: Employers & Employees, WC and Labor Unions

Multi-State Employers MUST Have Separate State Drug Testing Policies

July 16, 2009 by Atty Bill Judge Leave a Comment

Employers Ask

Q: Do I have to have a written drug test policy?
A: Yes.

Q: Do I have to have state-specific written policies?
A: Yes.

Q: Can’t we just have one that mirrors DOT?
A: No.

The days of simplicity, of a single, one-fits-all approach to drug testing are gone. Multi-state employers can no longer rely upon a single (corporate) workplace drug test policy. There are at least 21 states (and Boulder, CO) requiring or, depending on employer choices, justifing a separate policy.

This need is emphasized by recent court decisions in Connecticut, Minnesota, Oklahoma and Vermont, among others, making it increasingly clear multi-state employers MUST know and follow local rules. This means that “mirroring” DOT may be the biggest mistake an employer can make.

You have to follow the rules that apply to the test being performed, be it DOT-regulated or conducted in a state with its own set of rules.

What are some of those rules? A sample includes the following:
â— 7 states limit discipline for the first positive;

â— 12 states limit random testing to safety-sensitive jobs only;

â— 23 states require either a split sample or retest;

â— 23 states require that tests be conducted per federal DOT or DHHS;

â— 19 states require written notice of a positive test – IA by certified mail;

â— 12 states require that notice/policy be posted;

â— 8 states require initial or annual training/education;

â— 21 states specifically define what a “specimen” is;

â— 18 states have specific alcohol positive levels.

These are but a few of the many state-by-state differences any multi-state employer must take into account regarding who can be tested, when, how, where and for what substances. Additionally many states expect to see their own format (e.g. Florida, Maine) or have specific language (e.g. Missouri, Mississippi) that must appear somewhere in the policy and/or notices to employees and/or applicants. Failure to follow these rules and expectations could result in significant losses if yourthe employer’s policy is challenged.

Some recent cases where employers ignored state rules, tested under their “company” policy and as a result lost when challenged include the following:

Oklahoma: 2009, ConocoPhillips pays $583,413 (over $750,000 with attorney’s fees) for willful violation of Oklahoma’s mandatory statute. Estes v. ConocoPhillips Company, Case No. 05-CV-445-GKF-PJC)

Minnesota: 2008, INGDirect pays punitive damages for not accurately enforcing state law. (Wehlage v. ING BANK, FSB, d/b/a/ ING DIRECT, Case No. 07-CV-1852 (PJS/RLE))

Missouri: 2006, Wal-Mart looses unemployment case because the company policy did not accurately reflect state law. (Gaylord v. Wal-Mart Associates, Inc. and Division of Employment Security, WD 65939)

Connecticut: 1996, Employer failed to consider state law requirements when enforcing its policy. (Doyon v. Home Depot U. S. A., Inc. 850 F. Supp.125).

Additionally, if a test was not performed as required under state or local laws an employer will be unable to defeat an unemployment claim or, worse yet, not be able to defeat a workers’ compensation claim that might have otherwise been easily defended.

The list of states requiring/justifying separate policies and the reason(s) for this are as follows:

AL Voluntary DFWA & Presumptive Denial with warnings required
AR Voluntary DFWA
CO Presumptive Work Comp Denial law
CT Mandatory Law (unique criteria)
FL Voluntary DFWA (unique criteria)
GA Voluntary DFWA (unique criteria)
HI Mandatory Law (unique criteria)
IA Mandatory Law (unique criteria)
ID Voluntary DFWA (unique criteria)
ME Mandatory Law (unique criteria)
MN Mandatory Law (unique criteria)
MO Presumptive Unemployment requirements
MS Voluntary DFWA (unique criteria)
MT Mandatory Law (unique criteria)
OH Voluntary DFWA (unique criteria); Presumptive Work Comp Denial law
OK Mandatory Law (unique criteria)
RI Mandatory Law (unique criteria)
TN Voluntary DFWA (unique criteria)
UT Mandatory Law (unique criteria); Presumptive Work Comp Denial law
VT Mandatory Law (unique criteria)
WY Voluntary DFWA (unique criteria)
Boulder, CO, Mandatory Ordinance (unique criteria)

Ten (10) of these states (and Boulder, CO) are mandatory and there is no choice but to have a separate policy because of required language or other criteria.

Frequently, employer operate under the misconception that if they “mirror” federal DOT rules they are somehow safe from liability and can operate from a single company policy. Nothing is further from the truth. There are many ways that following DOT can get you into trouble, such as states only permitting testing if there is suspicion of “impairment” on the job, states requiring different alcohol cutoff levels, states allowing more time to request a split sample to be tested, and many more.

The bottom line, and it really does impact your bottom line, is you must follow the rules that apply to the tests you are conducting. To do otherwise is simply dodging bullets. Find a full description of individual state and territory laws at http://www.reduceyourworkerscomp.com/drug-testing-state-laws.php.

Attorney Judge, JD, LLM can be reached at The Center for Drug Test Information, 877-423-8422. info@centerfordrugtestinformation.com; http://www.centerfordrugtestinformation.com/.

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Do not use this information without independent verification.
All state laws vary.

Filed Under: Drug, Alcohol & Impairment Testing Tagged With: Drug Testing the Law State-by-State, Legal Issues: Employers & Employees, Workplace Drug Testing

Know the Basic Types of Drug Testing

How to Build a Workplace Drug and Substance Abuse Policy

Challenges When Testing for Prescription Drugs in the Workplace

Medical Marijuana Pain Management and Workers Compensation

Medical Marijuana New York Workers Comp and Employers

Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/

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A Drug Free Workplace and Workers Comp

Drug Sample Collection Must Be DIRECTLY Observed for Some Industries

Multi-State Employers MUST Have Separate State Drug Testing Policies

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