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DATIA Conference 2016 | Las Vegas, NV
State Drug Tes2ng Laws: What You & Your Clients Must Know
Bill Current • Bill Current is the President & Founding Partner of the
Current Consul5ng Group, LLC (formerly WFC & Associates, LLC)
• Publisher of the On-‐Line Ul2mate Guide to State Drug Tes2ng Laws at StateDrugTes5ngLaws.com
• Director of the Annual Survey of Drug Tes2ng Industry Trends (now in its 18th year)
• Former Execu2ve Director of the American Council for Drug Educa2on, Director of the Ins2tute for a Drug-‐Free Workplace, and Vice President of Consul2ng for Employee Informa2on Services
• Author of the book Why Drug Tes,ng?
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Current Consulting Group’s Mission CCG partners with our clients to increase their access to quality informa2on, expand their knowledge of products & services, and improve their performance allowing them to op2mize their profitability and their clients’ return on investment.
The Ul5mate Guide to State Drug Tes5ng Laws at StateDrugTes5ngLaws.com
available through
Powered by:
[email protected] 215-240-8204
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State Drug Tes2ng Laws: What You & Your Clients Must Know
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Presenta2on Overview State Drug Tes5ng Laws: What You and Your Clients Must
Know
There are literally hundreds of state laws that affect drug tes2ng, including medical marijuana and workers' and unemployment compensa2on laws. Most permit employers to conduct drug tes2ng but some place restric2ons on workplace programs.
Understanding how state laws work can help a provider win and retain new business. It can also help employers meet their drug
tes2ng objec2ves.
State Drug Tes2ng Laws Basics While some states place restric2ons on various elements of a drug tes2ng program, it is important to remember: • Every state permits drug tes2ng • Every state permits lab-‐based drug tes2ng • Every state permits urine tes2ng and most permit lab-‐based
oral fluid and hair tes2ng • Every state permits pre-‐employment tes2ng and at least
some form of employee tes2ng • Every state permits employers to hold employees
accountable for a posi2ve drug test
State Drug Tes2ng Laws 101 The most frequently asked ques2ons about state drug tes2ng laws: • Which laws are mul2-‐state employers required to comply with, their home state or all of them? • How do workers’ and unemployment compensa2on laws affect drug tes2ng policies? • What is required of employers in states without a mandatory drug tes2ng law? • Are there such a thing as “voluntary” drug tes2ng laws? • How do medical marijuana laws affect company drug tes2ng programs?
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State Drug Tes2ng Laws 101
For Starters • There are no two states in the U.S. with iden2cal drug tes2ng laws. – Some states have drug tes2ng specific statutes while other states have no dedicated drug tes2ng laws.
– However, even states without a statute may have case law or other types of laws that affect how and when drug tes2ng can be conducted.
– Some states may have “voluntary” laws that offer certain benefits, such as workers’ compensa2on discounts, to qualifying employers.
Federal Laws Pre-‐empt State Laws • Federal drug tes2ng regula2ons?
– DOT – DOE – DOD – NRC
• Americans with Disabili2es Act (ADA)?
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Do Theses Federal Laws Pre-‐empt… • State Drug Tes2ng Laws? YES • State Privacy Laws? YES • State Medical Marijuana Laws? YES • State Legalized Marijuana Laws? YES
All Applicable State Laws Apply • Which state law applies to your business if your company has business opera2ons in more than one state?
• Does the law of the state where your company is headquartered apply above any other states?
• What state law should your policy reflect?
Mandatory vs. Voluntary • What’s the difference between a mandatory law and a voluntary law?
• What happens if a state has a voluntary law but no mandatory law?
• What happens if a company is in some states with mandatory laws and in other states with voluntary laws?
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States With A Mandatory Law
• Mandatory laws apply to all employers that choose to conduct drug tes2ng within a par2cular state.
• Some states with mandatory laws are employer-‐friendly such as Iowa and Kansas.
• Other states with mandatory laws can be very restric2ve such as Vermont and Minnesota
States With A Mandatory Law • Some states with mandatory laws, such as
Maryland, regulate the drug tes2ng process (the “how” of drug tes2ng) but are generally silent on who can be tested and under what circumstances.
• Other mandatory laws, such as Minnesota, regulate virtually every aspect of workplace drug tes2ng, dicta2ng who may be subject to tes2ng and when tests may be required… as well as how drug tes2ng can be conducted.
States with Voluntary Laws
There are two types of voluntary laws rela2ve to drug tes2ng: 1. States that offer workers’ compensa2on discounts to employers who meet drug tes2ng standards established by the state, and 2. States that offer limited protec2on from liability when the employer acts in good faith based on the result of a drug test
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Worker’s Comp Discount States � Alabama (5% discount) � Arkansas (5% discount) � Florida (5% discount) � Georgia (7.5% discount) � Idaho (Both: Discount unspecified & limited protec2ons) � Kentucky (Mandatory for mining industry; 5% discount) � Mississippi (Both: 5% discount & limited legal protec2ons) � Ohio (Two levels: 4% or 7% discount available) � So. Carolina (5% discount) � Tennessee (5% discount) � Virginia (5% discount) � Wyoming (5% discount)
Limited Liability States
• Alaska • Arizona • Idaho • Iowa • Mississippi • Utah
States Without a Drug Tes2ng Law • Case law • State cons2tu2ons and privacy laws • Workers’ compensa2on laws • Unemployment compensa2on laws • Drug test chea2ng laws • Collec2ve bargaining agreements • Insurance requirements • State Drug-‐Free Workplace Acts • Medical marijuana laws
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Dos & Donts
POCT or Instant Tes2ng Results • Some states prohibit the use of point-‐of-‐care tests (POCT), in general, regardless of the specimen. These include: – Kansas
– Minnesota – Nevada (probably) – New York (POCT permioed only in state licensed loca2ons)
– Vermont
MINNESOTA (Revised September 2012)
Minnesota Statute Annotated §§ 181.950-‐.957
This informa2on is provided for educa2onal purposes only. No aoorneys were employed in the research and construc2on of this chart. Reader retains full responsibility for the use of the informa2on contained herein. HEADS UP: Minnesota has a restric5ve state drug tes5ng law with many detailed requirements. It is strongly recommended that employers and others refer directly to the state's statutory language to ensure compliance. KEY ISSUES AT A GLANCE: Specimens Permioed: NOT DEFINED*** Instant Tes5ng: PROHIBITED*** SAMHSA Guidelines Required: NOT SPECIFICALLY REQUIRED Workers' Comp Discount: NO Workers' Comp Denial: YES*** Unemployment Denial: YES*** Drug Tes2ng Circumstances: RESTRICTIONS APPLY ***
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States That Prohibit Random Tes2ng • Rhode Island and Vermont (plus the ci2es of San Francisco and Boulder, CO) prohibit random drug tes2ng.
• However, each permits other forms of tes2ng.
• For instance, in Rhode Island…
RHODE ISLAND POLICY ISSUES
Status Comments
WRITTEN POLICY Required Must have wrioen policy that meets the statutory requirements. See Notes for requirements.
NOTICE OF POLICY Probably Required
See Notes.
TESTING PERMITTED Applicant Permioed Permioed when a condi2onal offer of employment
is made; privacy in the collec2on process is provided for; posi2ve screens must be confirmed.
Reasonable suspicion (for cause)
Defined See
Comments
When there is reason to believe drugs are impairing someone’s job performance. Other condi2ons apply. See Notes sec2on.
Post-‐accident See Comments
Only when reasonable suspicion condi2ons are met. See Notes sec2on.
Periodic exam Prohibited Return-‐to-‐duty See
Comments Permioed as part of follow-‐up tes2ng.
Random Prohibited Follow Up See
Comments Permioed when there is a referral for treatment.
Disciplinary Ac2on • Some states dictate how employers may treat an employee who has a first-‐2me posi2ve.
• Other states do not men2on disciplinary ac2ons in their drug tes2ng statutes, though other state laws may apply.
• Let’s look at one example…
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MINNESOTA OUTCOMES Status Comments
No2fica2on of Test Result in Wri2ng
Required Within 3 days of receipt employer must no2fy donor in wri2ng of test result. See Notes.
No Adverse Ac2on Unless Confirmed
Required Confirmed result required.
Disciplinary Procedures Men5oned See Notes for “Limita5ons on Employee Discharge, etc” which includes job withdrawal for pre-‐employment tes5ng.
Employee May Request Copy of Test Result
Required In wri2ng.
Opportunity To Rebut/Explain Required Employer must inform donor of right to explain test; other condi2ons apply. See Notes.
Opportunity To Retest Required Paid by employee if the test is at the employee’s request. See Notes.
Rehabilita2on for First-‐2me Posi2ve
Possibly aser employer consults with treatment provider.
Cost Of Rehabilita2on Employer
Not Required Employee pays costs of rehabilita2on at own expense or pursuant to coverage under an employee benefit plan.
Disciplinary Ac2on: Minnesota Limita5ons on employee discharge, discipline, or discrimina5on. (b) In addi2on to the limita2on under paragraph (a), an employer may not discharge an employee for whom a posi2ve test result on a confirmatory test was the first such result for the employee on a drug or alcohol test requested by the employer unless the following condi2ons have been met: (1) The employer has first given the employee an opportunity to par2cipate in, at the employee's own expense or pursuant to coverage under an employee benefit plan, either a drug or alcohol counseling or rehabilita2on program...; and (2) The employee has either refused to par2cipate in the counseling or rehabilita2on program or has failed to successfully complete the program, as evidenced by withdrawal from the program before its comple2on or by a posi2ve test result on a confirmatory test aser comple2on of the program.
Workers’ & Unemployment Compensa2on Laws
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WC & UC Laws
• The workers’ & unemployment compensa2on laws in many states either men2on or, in some cases, highly regulate drug tes2ng for workers’ comp purposes.
• Here are two examples for workers’ comp and one for unemployment comp…
Iowa
85.16 WILLFUL INJURY -‐-‐ INTOXICATION. No compensa2on under this chapter shall be allowed for an injury caused: 2. By the employee's intoxica,on, which did not arise out of and in the course of employment but which was due to the effects of alcohol or another narco,c, depressant, s,mulant, hallucinogenic, or hypno,c drug not prescribed by an authorized medical prac,,oner, if the intoxica-on was a substan-al factor in causing the injury.
Illinois
According to the statute, it must be demonstrated that intoxica2on is indeed the "proximate cause" of the worker's injuries or that the employee was "so intoxicated at the 2me of the injury that the intoxica2on was a departure from employment." “Drug and alcohol tes,ng must be conducted according to the Na,onal Labor Rela,ons Board or Department of Transporta,on guidelines”
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Missouri Revised Statutes, Chapter 288 Employment Security, Sec2on 288.045 • Drug tes2ng policy that states when drug tests will/can take place
• Use of a cer2fied laboratory • Collec2on standards established by 49 CFR part 40 • Chain-‐of-‐custody protocols established by DOT • Specimen can be a “2ssue, fluid, or a product of the human body capable of revealing the presence of alcohol or drugs or their metabolites
• Confirmatory retest may be requested by employee
Missouri Revised Statutes, Chapter 288 Employment Security, Sec2on 288.045
10. Any employer that ini2ates an alcohol and drug tes2ng policy aser January 1, 2005, shall ensure that at least sixty days elapse between a general one-‐2me no2ce to all employees that an alcohol and drug tes2ng workplace policy is being implemented and the effec2ve date of the program.
Drug tes5ng & Marijuana
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States with Medical Marijuana Laws 1. Alaska 2. Arizona 3. California 4. Colorado 5. Connec2cut 6. Delaware 7. District of Columbia 8. Hawaii 9. Illinois 10. Maine 11. Maryland 12. Massachuseos
13. Michigan 14. Minnesota 15. Montana 16. Nevada 17. New Hampshire 18. New Jersey 19. New Mexico 20. New York 21. Oregon 22. Rhode Island 23. Vermont 24. Washington
Illinois Illinois' new law has an extensive employment sec2on, which is largely employer friendly. It is one of the rare medical marijuana state laws that actually men2ons drug tes2ng: "Nothing in this Act shall prohibit an employer from enforcing a policy concerning drug tes,ng, zero-‐tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner."
Illinois It also states that: "Nothing in this Act shall limit an employer from disciplining a registered qualifying pa,ent from viola,ng a workplace drug policy." The Illinois law, which became effec2ve January 1, 2014, includes specific language that protects an employer when taking disciplinary ac2on based on a drug test result or when a registered pa2ent uses marijuana on the employer's premises or during work hours.
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Minnesota Minnesota’s law places restric2ons on marijuana use related to the workplace: § Undertaking any task under the influence of medical cannabis would cons2tute negligence or professional malprac2ce; § Possessing or engaging in the use of medical cannabis in any public place, including any indoor or outdoor area used by or open to the general public, or a place of employment; § Opera2ng, naviga2ng, or being in physical control of any motor vehicle, aircras, train, or motorboat, or working on transporta2on property, equipment, or facili2es while under the influence of medical cannabis. § The limita2ons sec2on of the law also prohibits use in a school bus or van, on any school grounds, in any correc2onal facility, or on the grounds of a childcare or home daycare facility.
Minnesota A Minnesota employer may not discriminate against a person in hiring, termina2on, or any term or condi2on of employment, or penalize a person, if the discrimina2on is based upon: (1) the person being a registered medical marijuana pa2ent; or (2) “a pa,ent's posi,ve drug test for cannabis components or metabolites, unless the pa,ent used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.” Also, an employee is permioed the state’s medical marijuana law to show proof of registra2on as part of his or her explana2on for tes2ng posi2ve.
State Drug Tes5ng Laws 201
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All Laws Within a State May Apply
• Mandatory drug tes2ng law • Voluntary drug tes2ng law that acts as a mandatory law
• Workers’ compensa2on law • Unemployment compensa2on law • State government regula2ons • Privacy law • Case law • As well as some federal laws… ADA, etc.
Iowa
• Mandatory drug tes5ng law: Iowa Code §730.5 • Workers’ compensa5on law: Iowa Code Ann §85.16 • State government regula5on: Iowa Administra2ve Code Rule 641-‐12.1 to 12.21
• Federal laws: ADA
What to Look For… In a mandatory drug tes2ng law: • Those things that are required • Those things that are prohibited • Those things that are permioed with condi2ons • Those things that should be done in order to strengthen the validity of your drug tes2ng policy
• Anything unique to this par2cular state that should be included in your policy
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Iowa Code §730.5 What’s unique? • Confiden5ality language • No5fica5on of test result • Policy dissemina2on • Retest opportunity • Supervisor training • Rehab requirement for companies with 50+ employees when someone tests posi2ve for alcohol
Iowa §730.5: Confiden2ality • An employee, or a prospec2ve employee, who is the subject of a drug or alcohol test conducted under this sec2on pursuant the Company's wrioen policy and for whom a confirmed posi2ve test result is reported will, upon wrioen request, have access to any records rela2ng to the employee's drug or alcohol test, including records of the laboratory where the tes2ng was conducted and any records rela2ng to the results of any relevant cer2fica2on or review by a medical review officer.
Iowa Code §730.5: Confiden2ality • However, a prospec2ve employee will be en2tled to such records only if the prospec2ve employee requests the records within 15 calendar days from the date the Company provided the prospec2ve employee wrioen no2ce of the results of a drug or alcohol test.
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Iowa Code §730.5: No2fica2on • If a confirmed posi2ve drug or alcohol test for a current
employee is reported to the Company by the medical review officer, the Company will no2fy the employee in wri2ng by cer2fied mail, return receipt requested, of:
• a) the results of the test, • b) the employee's right to request and obtain a confirmatory
test of the second sample collected pursuant to Iowa law at… • c) an approved laboratory of the employee's choice, and the • d) fee payable by the employee to the Company for
reimbursement of expenses concerning the test.
Iowa Code §730.5: No2fica2on • The fee charged an employee will be an amount that represents the costs associated with conduc2ng the second confirmatory test, which will be consistent with the Company's cost for conduc2ng the ini2al confirmatory test on an employee's sample.
Iowa Code §730.5: No2fica2on • Individual has 7 days from date no2fica2on was sent • Individual chooses the lab • Results of second confirma2on test must be reported to the same MRO who reviewed the first result, who will issue a report to the company
• If second test result is not confirmed posi2ve, company will reimburse person cost of test and the ini2al test result will not be considered posi2ve
• No disciplinary ac2on may be taken based on that ini2al test result
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Source: StateDrugTes2ngLaws.com
Disclaimer: This informa2on is provided for educa2onal purposes and should not be relied upon as legal advice. Reader retains full responsibility for compliance with applicable laws and regula2ons.
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Source: StateDrugTes5ngLaws.com
Disclaimer: This informa2on is provided for educa2onal purposes and should not be relied upon as legal advice. Reader retains full responsibility for compliance with applicable laws and regula2ons. 53
Source: StateDrugTes5ngLaws.com Disclaimer: This informa2on is provided for educa2onal purposes and should not be relied upon as legal advice. Reader retains full responsibility for compliance with applicable laws and regula2ons.
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Iowa Code §85.16 Willful Intoxica2on Act
“No compensa,on under this chapter shall be allowed for an injury caused… “2. By the employee’s intoxica,on, which did not arise out of and in the course of employment but which was due to the effects of alcohol or another narco,c, depressant, s,mulant, hallucinogenic, or hypno,c drug not prescribed by an authorized medical prac,,oner, if the intoxica,on was a substan,al factor in causing the injury.”
Illinois—Workers’ Comp “Drug and alcohol tes2ng must be conducted according to the Na2onal Labor Rela2ons Board or Department of Transporta2on guidelines. If the employee refuses to take the test, he is presumed guilty of being inebriated on the job. The employee has the right to appeal. If he has a prescrip2on for the drugs that may have caused the inebria2on then he must present it in his defense. He can try to demonstrate that being inebriated alone was not the sole cause of the injury.”
Iowa Administra2ve Code Rule 641-‐12.1 to 12.21
• Laboratory regula2on that does not specifically apply to employers.
• Other states have laboratory regula2ons that do apply to employers and must be covered in the company’s drug tes2ng policy.
• For example…
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Kansas • The Kansas Department of Health requires all drug tests to be performed in laboratory licensed by the state.
• All tests must be conducted in a lab that meets the requirements of the federal government’s Clinical Laboratory Improvement Act amendments of 1988.
• Federal cut-‐of levels must be used.
Nevada Chapter 652 – Medical Laboratories NAC 652.346 Point-‐of-‐care tes5ng device: Persons qualified to use. (NRS 439.200, 652.123, 652.130) To be qualified to use a point-‐of-‐care tes2ng device, a person must be licensed or cer2fied as a: • 1. Director; • 2. General supervisor; • 3. Clinical laboratory technologist; • 4. Medical technician; • 5. Blood-‐gas technologist; • 6. Blood-‐gas technician; • 7. Technologist; • 8. Technician; or • 9. Point-‐of-‐care test analyst.
Maryland
A significant part of Maryland’s drug tes2ng regula2ons are found in the following laboratory-‐related regula2ons: • HEALTH-‐GENERAL TITLE 17 LABORATORIES SUBTITLE 214-‐217 • MARYLAND REGULATIONS CODE TITLE 10.10.10.01-‐.09
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What to Look for In Medical Marijuana Laws
Medical Marijuana
• Workplace provision? • Does it say anything specifically about drug tes2ng? • Does it prohibit medical marijuana use at work? • Does it prohibit working while under the influence? • What does it say about discrimina2on of medical marijuana users?
• What does it say about employers’ right to discipline medical marijuana users?
• Does it permit smoking marijuana?
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California
• An example of a state that does not say anything about the workplace in its medical marijuana law.
• Other laws in the state, however, prohibit discrimina2on, promote privacy, and prevent employers from drug tes2ng just anybody at any 2me.
Illinois Provision Status
Workplace provision Yes
Use at work? Employers are not required to accommodate use at work
Working under the influence? Not permioed
Discrimina2on? Not permioed
Discipline? Allowed… nothing in the law creates a defense for failing a drug test
Drug tes2ng? Men2oned and permioed
Smoking? Permioed
Minnesota Provision Status
Workplace provision Yes
Use at work? Prohibits using or possessing at work
Working under the influence? Not permioed if it would cause negligence or professional malprac2ce
Discrimina2on? Permioed under specific circumstances
Discipline? Not men2oned in a discipline sec2on; discrimina2on sec2on prohibits employers from discrimina2on based solely on a posi2ve drug test result
Drug tes2ng? Men2oned and permioed
Smoking? Prohibited
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The Ul5mate Guide to State Drug Tes5ng Laws at StateDrugTes5ngLaws.com
available through
Powered by:
[email protected] 215-240-8204
CurrentConsultingGroup.com