STATE DRUG TESTING LAW 101 BY BILL CURRENT, PRESIDENT, THE CURRENT CONSULTING GROUP
State Laws and SAMHSA’s Oral Fluid Guidelines
Tis information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
T
he final guidelines for lab-based oral fluid drug testing (OFMG) from the Substance Abuse and Mental Health
Services Administration (SAMHSA) have been published in the Federal Register. Now everyone who buys or sells drug testing wants to know: “What does it all mean?” It’s easy to say that the OFMG only
apply to federal workplaces, meaning only federal agencies may utilize lab-based oral fluid testing in place of or in combination with lab-based urine testing according to OFMG. And while that’s true at this time, it doesn’t begin to tell the whole story. Consider these three key points: 1. Te U.S. Department of Transportation (DOT), which accounts for more than 6 million mandated drug tests annually, has stated that its intention is to be ready to permit covered employers to utilize lab-based oral fluid drug testing by the time SAMHSA completes its 12-18-month implementation period. SAMHSA predicted in its original Notice of Proposed Rulemaking (NPRM) and then again in final regulations that 25–30% of all DOT- mandated drug tests would transition to oral fluid within four years aſter the implementation of the guidelines.
2. Lab-based oral fluid drug testing has historically been permited in 47 states and most U.S. territories (with the exception of Maine, Vermont, Hawaii and Puerto Rico). Tis means that non-government mandated employers in most states can utilize lab-based oral fluid testing now, without waiting for
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the completion of the implementation period. It is reasonable to predict that the federal government’s endorsement of this alternative testing method will serve as a “green” light for many employers who have traditionally shied away from anything other than urine drug testing.
3. Tere are 17 states with general laws, industry-specific laws, or workers’ and/ or unemployment compensation laws that defer to the federal guidelines (either SAMHSA or DOT) for their procedural requirements. Tis means that historically, employers covered by those state laws have only been permited to utilize urine testing vis-à- vis the federal guidelines. Presumably, the OFMG now make lab-based oral fluid testing a viable option in some, if not all, of those jurisdictions.
A Look Back on the Guidelines
SAMHSA’s announcement on October 25 was not completely unexpected (the guidelines had been in the works for years) but some providers and employers may have lost hope that regulations would ever come out. Aſter all, for more than three decades the federal government’s mandatory guidelines for urine drug testing established, in many people’s minds, a “gold” standard for how to conduct workplace drug testing that had become very comfortable for many. Tat process has traditionally involved the use of off-site collection sites, analysis at SAMHSA- certified labs, and trained Medical Review Officers (MROs) to verify the accuracy of the lab results. Te new OFMG, essentially, follow a similar course with the exception of the use of professional
collectors. In other words, the OFMG establish a standard for lab-based oral fluid drug testing that will feel very familiar to employers and providers who have relied on the federal guidelines to ensure the integrity of their drug testing programs. Te botom line here is that, even before
the implementation period is complete, many employers will feel emboldened to turn to the OFMG as a quasi “guide” to implementing oral fluid drug testing now, rather than a year (or longer) from now. And that brings us to the issue of state drug testing laws.
State Drug Testing Laws and Oral Fluid
If 47 states have historically permited lab-based oral fluid drug testing but 17 of those states place restrictions on its use by some employers, there are 30 states where employers can implement programs that mirror the newly released but not yet implemented OFMG without a problem (from the perspective of state laws). It’s only in the other 17 states that it gets complicated, though it is important to note that those restrictions do not typically apply generally. Tere are several good examples. Kentucky, for instance, has a voluntary
drug and alcohol testing law that only applies to employers who wish to qualify for a 5% credit on their workers’ compensation premium. Employers that choose not to comply with the voluntary law are not restricted by any of the law’s requirements or restrictions. Kentucky’s law states;
“Drug test’ or ‘test’ means a chemical, biological, or physical instrumental analysis administered by a qualified laboratory, for the purpose of determining the presence or absence of a drug or its metabolites or alcohol
2020 • Issue 2
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