STATE DRUG TESTING LAW 101 BY BILL CURRENT, CURRENT CONSULTING GROUP


How to Read State Drug Testing Laws


This column will provide our readers with news and updates on state drug testing laws and insight into the On-Line Ultimate Guide to State Drug Testing Laws.


in multiple states are required to comply with the laws in each of the states in which they are located, and 2) within each state several laws, including case law decisions, may impact a company’s drug testing policy. In this article, we will discuss some of the key things to look for when reading a state drug testing law. Keeping in mind that there are mandatory


I


and voluntary drug testing laws, employers and drug testing providers should focus on the following as they examine state laws: • Tose things that are specifically required by a statute,


• Tose things that are directly or indirectly prohibited by a statute,


• Tose things that are permited with conditions,


• Tose things that should be done in order to strengthen the validity of a drug testing policy but that are not necessarily required, and


• Anything unique to a particular state’s drug testing law. Many state drug testing laws are specific


about what is required. For example, it is not uncommon to find statutory language


54 datia focus


n the last two issues of DATIA focus this column discussed two key issues related to state drug testing laws: 1) companies


that specifies how a drug test must be conducted. Tis includes, for example, what specimens are permited, what type of certification a laboratory must have, who is qualified to collect a specimen, or if a split specimen is required. And when something is not covered in the statutory language of a state law it doesn’t necessarily mean it’s permited or prohibited. A careful reading of related case law may provide clarification as well as regulatory language from a state agency with jurisdiction over drug testing such as a department of health or labor.


Unique Requirements No two state drug testing laws are exactly alike. Most state laws contain a number of unique requirements that are, perhaps, only found in that state’s statute. When looking for unique requirements, pay close atention to issues like providing advance notice of a drug testing program, how and when to report drug test results, giving donors the opportunity for a confirmatory retest in the event of a confirmed/verified positive result, and confidentiality language. Following are a couple of examples from


Iowa’s drug testing law, Iowa Code §730.5. Regarding access to drug test results the Iowa law states:


“An employee, or a prospective employee, who is the subject of a drug or alcohol test conducted under this section pursuant [to] the Company’s writen policy and for whom a confirmed positive test result is reported will, upon writen request, have access to any records relating to the employee’s drug or alcohol test, including records of the laboratory where the testing was conducted and any records relating to the results of any relevant certification or review by a medical review officer.” (§730.5) (13) (b.)


Hence, Iowa employers must provide access to employees and job applicants of


“any records” related to that person’s drug or alcohol test result. Tis includes lab and MRO records. Yet, the statute places some conditions on job applicants’ ability to access such records:


“However, a prospective employee will be entitled to such records only if the prospective employee requests the records within 15 calendar days fom the date the Company provided the prospective employee writen notice of the results of a drug or alcohol test.” (§730.5) (13) (b.)


Most state drug testing laws, though not


all, include some requirements for informing donors of the results of their drug test. Tis oſten includes the timing and approved methods of communication for making such information known. Again, using Iowa §730.5 as an example, consider the following:


“If a confirmed positive drug or alcohol test for a current employee is reported to the Company by the medical review officer, the Company will notify the employee in writing by certified mail, return receipt requested, of: • the results of the test, • the employee’s right to request and obtain a confirmatory test of the second sample collected pursuant to Iowa law at


• an approved laboratory of the employee’s choice, and the


• fee payable by the employee to the Company for reimbursement of expenses concerning the test.” (§730.5) (7) (i.) (1) Interesting. But if you stop there and


don’t read further you will miss some important guidance regarding the fee for the retest. Te same paragraph states:


“Te fee charged to an employee shall be an amount that represents the costs associated with conducting the second confirmatory test, which shall be consistent with the employer’s cost for conducting the initial confirmatory test on an employee’s sample.” (§730.5) (7) (i.) (1)


Fall 2015


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