State Drug Testing Laws

Reviewed and Revised August 2012

The Drug-Free Workplace Act of 1988 requires some federal contractors and all federal

grantees to agree that they will provide drug-free workplaces as a condition of receiving a

contract or grant from a federal agency. The Act does not apply to those that do not have, nor

intend to apply for, contracts/grants from the federal government. The Act also does not apply to

subcontractors or subgrantees. Employers not covered by the federal Drug Free Workplace Act

of 1988 may be covered by the laws of their particular state(s). When there is both a federal and

state law in existence, employers need to comply with the legislation that provides the greatest

benefit to employees.

To check whether there is pending legislative issues or recently enacted legislative changes for

your state(s) please click here.

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If a state does not appear on the following chart it is due to our not finding any evidence a statute

exists for that state. In some cases provisions only exist for public employers.

Please note: This material is for personal use only and is protected by U.S. Copyright Law (Title

17 USC). It is provided as general information only and does not constitute and is not a

substitute for legal or other professional advice. Reliance upon this material is solely at your

own risk.

State Statute

Alabama 480-5-6-.03 SUBSTANCE ABUSE TESTING. (1) The specimen collected for substance abuse

testing may be tissue, blood, urine, breath, or other product of the human body that is capable of

revealing the presence of drugs or their metabolites or of alcohol. However, the collection of any

specimen constitutes a search under the Fourth Amendment because it implicates significant privacy

concerns. Therefore, to balance the degree of intrusion on the individual's privacy interest against the

promotion of the employer's legitimate interests, the preferred specimen is: (a) Urine for drug testing,

and (b) Breath for alcohol testing. (2) The methodology and procedures for alcohol testing shall

conform to the Department of Transportation (DOT) 49 Code of Federal Regulation Part 40,

Procedures For Transportation Workplace Drug Testing Programs, Subpart A - General and Subpart C

- Alcohol Testing. Except for those employees who must comply with DOT standards, an employee

shall be determined to be under the influence of alcohol if the employee's normal faculties are

impaired due to the consumption of alcohol or the employee has an alcohol level of .08 or higher,

except for safety sensitive functions the alcohol level may be .04 or higher.

480-5-6-.04 MEDICAL REVIEW OFFICER. (1) Qualifications and Responsibilities: (a) The MRO

shall not be an employee of the laboratory conducting the drug test unless the laboratory establishes a

clear separation of functions to prevent any appearance of a conflict of interest. (b) The role of the

MRO is to review and interpret confirmed positive test results obtained through the employer's testing

program. The MRO shall examine alternate medical explanations for any positive test result. This

action may include conducting a medical interview and review of the individual's medical history, or

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review of any other relevant biomedical factors. The MRO shall not, however, consider the results of

urine samples that are not obtained or processed in accordance with Code of Alabama, 1975 §§25-5-

330 through 25-5-340. (2) Reporting and Review of Results: (a) Positive Result - An essential part of

the drug testing program is the final review of confirmed positive results from the laboratory. A

positive test result does not automatically identify an employee/applicant as having used drugs in

violation of employer policies. This review shall be performed by the Medical Review Officer (MRO)

prior to the transmission of the results to employer administrative officials. The MRO review shall

include review of the chain of custody to ensure that it is complete and sufficient on its face. 1. Prior

to making a final decision to verify a positive test result for an individual, the MRO shall give the

individual an opportunity to discuss the test results with him or her. 2. Following verification of a

positive test result, the MRO shall, as provided in the employer's policy, refer the case to the

employer's employee assistance or rehabilitation program, if applicable, to the management official

empowered to recommend or take administrative action (or the officials's designated agent), or both.

3. The MRO shall notify each employee who has a confirmed positive test that the employee has 72

hours in which to request a reanalysis of the original specimen, if the single sample method of

collection was used, or request a test of the split specimen, if the split sample method of collection was

used, if the test is verified as positive. Only the MRO may authorize such a reanalysis. If the

reanalysis of the single sample or analysis of the split sample fails to reconfirm the presence of the

drug or drug metabolite, or if the split specimen is unavailable, inadequate for testing or untestable, the

MRO shall cancel the test and report the cancellation to the employer. 4. If an employee has not

contacted the MRO within 72 hours, the employee may present to the MRO information documenting

that serious illness, injury, inability to contact the MRO, lack of actual notice of the verified positive

test, or other circumstances unavoidably prevented the employee from timely contacting the MRO. If

the MRO concludes that there is a legitimate explanation for the employee's failure to contact the

MRO within 72 hours, the MRO shall direct that the reanalysis of the primary specimen or analysis of

the split specimen, as applicable, be performed. (b) Negative Result - The duties of the MRO with

respect to negative results are purely administrative. (3) Blind Performance Test Procedures: (a) Each

employer or MRO shall use blind testing quality control procedures as provided in this rule. (b) Each

employer or MRO shall submit three blind performance test specimens for each 100 employee

specimens it submits, up to a maximum of 100 blind performance test specimens submitted per

quarter.

480-4-3-.28 Disqualification For Testing Positive For Illegal Drugs. (1) An employer will be

considered to have met the burden of proving the drug policy satisfies the "otherwise reliable"

requirement of Code of Ala. 1975, § 25-4-78(3)a.(i) if: (a) The drug policy is delivered to each

employee in writing and warns the employee that a positive test result for any illegal drug as listed in

the policy could result in dismissal, and the warning contains a statement that either, 1) testing

positive; 2) refusal to submit or cooperate with a drug test; or 3) knowingly altering or adulterating the

blood, urine or hair sample will result in possible dismissal; and (b) The drug policy provides for an

independent confirmatory test from the same specimen at the request of and at the expense of the

employee; and (c) The drug policy applies to all employees regardless of position or classification, and

clearly states the basis on which testing will be conducted, i.e., pre-employment; random; post

accident; by a qualified independent laboratory; and further, if additional testing is imposed on some

but not all employees, the employer must show a rational basis for such additional testing; and either

1. It is voluntarily conducted and evaluated in accordance with U.S. Department of Transportation in

49 C.F.R. Part 40 and a copy of the report of the medical review officer is submitted to the

Department of Industrial Relations Unemployment Compensation Division with each claim for

unemployment compensation filed where separation from employment is alleged to be on account of a

drug related separation subject to Section 25-4-78(3)a.(i); or 2. Provides for the review of laboratory

findings by a qualified independent medical review officer, and the submittal of such medical review

officer's report to the Unemployment Compensation Division for each claim for unemployment

compensation filed where separation from employment is alleged to be on account of a drug related

separation subject to Section 25-4-78(3)a.(i), which shall be prima facie evidence that the laboratory

tests are reliable. (2) The term "Medical Review Officer" (MRO) as used in this rule is defined as a

licensed physician who has knowledge of substance abuse disorders and has appropriate medical

training to interpret and evaluate an individual's positive drug test results including evaluation of his or

her medical history and any other biomedical information. Such MRO must not be an employee of a

drug testing laboratory unless there is clear separation of functions preventing any conflict of interest

and the MRO has no responsibility for a laboratory drug testing or quality control operation. (3) The

following criteria at a minimum must be reviewed by the MRO for the report of a positive test to

satisfy the "otherwise reliable" provision of Alabama Code Section 25-4-78(3)a 1978: (a)

Confidentially of medical information and identify of donor. (b) Maintenance of temperature of

specimen within acceptable range. Use of temperature monitored cup that shows consistency of the

specimen with the donor's body temperature. (c) Specific gravity test of specimen. (d) Maintenance of

documented chain of custody (COC) of specimen with certified copy of original COC form to be

provided to MRO. (e) Retention by the laboratory of the original urine specimen and split specimen of

the sample for one full year on all positive test. (f) The use of another individual's prescription drugs

whether intentional or not is not a valid explanation for a positive test result. (g) The facility at which

the specimen is collected is recommended to provide the following: 1. have an enclosure for private

urination. 2. have a toilet containing colored water for completion of urination. 3. have running water

or sink, and 4. a means outside the enclosure for hand washing. (h) Sealing of the specimen by the

collection site person immediately in the presence of the donor. (i) Integrity of specimen maintained

by immediately mailing or maintaining the specimen in secure storage in direct control of the

collection site person until it is mailed. (4) Provisions of Sections (1)(a), (1)(b)1, and (1)(b)2 of this

rule notwithstanding, no otherwise reliable drug policy established to cover existing employees shall

be applicable to existing employees until a period of thirty calendar days has elapsed from the date the

drug policy was made known to such existing employees in writing and acknowledgment in writing

received from the employee. (5) A qualified laboratory for the purposes of this rule is a National

Institute on Drug Abuse (NIDA) certified laboratory or if not so certified utilizes gas chromatography

and mass spectrometry (GC/MS) testing technique. (6) Hair Testing (a) The drug policy provides each

employee at his or her expense to obtain for any position test a followup reconfirming test by a

certified laboratory designated by the Medical Review Officer that utilizes the same or equivalent

testing methods and standards at the laboratory that performed the initial and confirming tests. (b) The

drug policy applies to all similarly-situated applicants or employees regardless of position or

classification; clearly states the basis on which drug hair testing will be conducted, i.e., pre-

employment, random, monitoring under a rehabilitation agreement or "last change" agreement; by a

certified laboratory; if additional testing is conducted on some but not all similarly-situated

employees, the employer has rational basis for excluding some but not other similarly-situated

employees; provides for review by a qualified independent medical review officer (i.e., a medical

review officer not employed by the testing laboratory), and the submittal of such medical review

officer's report to the Unemployment Compensation Division for each claim for unemployment

compensation filed when separation from employment is alleged to be on account of a drug-related

separation subject to § 25-4-78(3)a.(i), which shall be prima facie evidence that the laboratory tests are

reliable.

25-5-334. Notice of testing; written policy statement. (a) One time only, prior to testing, all

employees and job applicants for employment shall be given a notice of testing. In addition, all

employees shall be given a written policy statement from the employer which contains all of the

following: (1) A general statement of the employer's policy on employee substance abuse which shall

identify: a. The types of testing an employee or job applicant may be required to submit to, including

reasonable suspicion or other basis used to determine when the testing will be required. b. The actions

the employer may take against an employee or job applicant on the basis of a positive confirmed test

result. (2) A statement advising an employee or job applicant of the existence of this article. (3) A

general statement concerning confidentiality. (4) The consequences of refusing to submit to a drug

test. (5) A statement advising an employee of the Employee Assistance Program, if the employer

offers the program, or advising the employee of the employer's resource file of assistance programs

and other persons, entities, or organizations designed to assist employees with personal or behavioral

problems. (6) A statement that an employee or job applicant who receives a positive confirmed test

result may contest or explain the result to the employer within five working days after written

notification of the positive test result. (7) A statement informing an employee of the provisions of the

federal Drug-Free Workplace Act, if applicable to the employer. (b) An employer not having a

substance abuse testing program in effect on July 1, 1996, shall ensure that at least 60 days elapse

between a general onetime notice to all employees that a substance abuse testing program is being

implemented and the beginning of the actual testing. An employer having a substance abuse testing

program in place prior to July 1, 1996, shall not be required to provide a 60-day notice period. (c) An

employer shall include notice of substance abuse testing on vacancy announcements for those

positions for which testing is required. A notice of the employer's substance abuse testing policy shall

also be posted in an appropriate and conspicuous location on the employer's premises, and copies of

the policy shall be made available for inspection by the employees or job applicants of the employer

during regular business hours in the employer's personnel office or other suitable locations. All testing

conducted by an employer shall be in conformity with the standards and procedures established in this

article and all applicable rules adopted by the State Department of Industrial Relations pursuant to this

article. Notwithstanding the foregoing, an employer shall not have a legal duty under this article to

request an employee or job applicant to undergo testing.

25-5-330. Legislative Intent.— It is the intent of the Legislature to promote drug-free workplaces in

order that employers in this state be afforded the opportunity to maximize their levels of productivity,

enhance their competitive positions in the marketplace, and reach their desired levels of success

without experiencing the costs, delays, and tragedies associated with work related accidents resulting

from substance abuse by employees.

25-5-331.Definitions.— As used in this article, the following words and terms shall have meanings as

follows: (1) Alcohol. Ethyl alcohol, hydrated oxide of ethyl, or spirits of wine, from whatever source

or by whatever process produced. (2) Chain of custody. The methodology of tracking specified

materials, specimens, or substances for the purpose of maintaining control and accountability from

initial collection to final disposition for all of the materials, specimens, or substances and providing for

accountability at each stage in handling, testing, and storing materials, specimens, or substances and

reporting test results. (3) Confirmation test or Confirmed test. A second analytical procedure used to

identify the presence of a specific drug or metabolite in a specimen. The confirmation test shall be

different in scientific principle from that of the initial test procedure. The confirmation method shall

be capable of providing requisite specificity, sensitivity, and quantitative accuracy. (4) Drug.

Amphetamines, cannabinoids, cocaine, phencyclidine (PCP), methadone, methaqualone, opiates,

barbituates, benzodiazepines, propoxyphene, or a metabolite of any of the substances. (5) Employee.

Any person who works for salary, wages, or other remuneration for an employer. (6) Employee

assistance program. A program designed to assist in the identification and resolution of job

performance problems associated with employees impaired by personal concerns. A minimum level of

core services shall include consultation and training; professional, confidential, appropriate, and

timely problem assessment services; short-term problem resolution; referrals for appropriate diagnosis,

treatment, and assistance; follow-up and monitoring; employee education; and quality assurance. (7)

Employer. A person or entity that is subject to the Alabama Workers' Compensation Law, except that

this article shall not apply to individual self-insurers or members of group self-insurance funds. (8)

Initial test. A sensitive, rapid, and reliable procedure to identify negative and presumptive positive

specimens. All initial tests shall use an immunoassay procedure or an equivalent procedure or shall

use a more accurate scientifically accepted method approved by the National Institute on Drug Abuse

as more accurate technology becomes available in a cost-effective form. (9) Job applicant. A person

who has applied for a position with an employer and has been offered employment conditioned upon

successfully passing a substance abuse test and may have begun work pending the results of the

substance abuse test. (10) Nonprescription medication. A drug or medication authorized pursuant to

federal or state law for general distribution and use without a prescription in the treatment of human

disease, ailments, or injuries. (11) Prescription medication. A drug or medication lawfully prescribed

by a physician for an individual and taken in accordance with the prescription. (12) Reasonable

suspicion testing. Substance abuse testing based on a belief that an employee is using or has used

drugs or alcohol in violation of the policy of the employer drawn from specific objective and articulate

facts and reasonable inferences drawn from the facts in light of experience. Among other things, the

facts and inferences may be based upon, but not limited to, the following: a. Observable phenomena

while at work such as direct observation of substance abuse or of the physical symptoms or

manifestations or being impaired due to substance abuse. b. Abnormal conduct or erratic behavior

while at work or a significant deterioration in work performance. c. A report of substance abuse

provided by a reliable and credible source. d. Evidence that an individual has tampered with any

substance abuse test during his or her employment with the current employer. e. Information that an

employee has caused or contributed to an accident while at work. f. Evidence that an employee has

used, possessed, sold, solicited, or transferred drugs while working or while on the premises of the

employer or while operating the employer's vehicle, machinery, or equipment. (13) Rehabilitation

program. An established program capable of providing expert identification, assessment, and

resolution of employee drug or alcohol abuse in a confidential and timely service. The service shall in

all cases be provided by persons licensed or appropriately certified as health professionals to provide

drug or alcohol rehabilitative services. (14) Specimen. Tissue, blood, breath, urine, or other product of

the human body capable of revealing the presence of drugs or their metabolites or of alcohol. (15)

Substance. Drugs or alcohol. (16) Substance abuse test or Test. Any chemical, biological, or physical

instrumental analysis administered for the purpose of determining the presence or absence of a drug or

its metabolites or of alcohol.

25-5-332.Insurance discounts.—(a) If an employer implements a drug-free workplace program

substantially in accordance with this article, the employer shall qualify for certification for a five

percent premium discount under the employer's Workers' Compensation insurance policy. (b) For

each policy of Workers' Compensation insurance issued or renewed in the state on and after July 1,

1996, there shall be granted by the insurer a five percent reduction in the premium for the policy if the

insured has been certified by the Department of Industrial Relations, Workers' Compensation

Division, as having a drug-free workplace program which complies with the requirements of this

article and has notified its insurer in writing of the certification. (c)(1) The premium discount provided

by this section shall be applied to an insured's policy of Workers' Compensation insurance pro rata as

of the date the insured receives certification by the Department of Industrial Relations, Workers'

Compensation Division, and shall continue for a period not to exceed four years. Notwithstanding the

foregoing, an insurer shall not be required to credit the actual amount of the premium discount to the

account of the insured until the final premium audit under the policy. Certification of an insured shall

be required for each of the four years in which the premium discount is granted. Thereafter, any

premium discount pursuant to this article shall be determined from the experience rating plan of the

insured, or in the case of an insured not rated upon experience, as provided in subdivision (2). (2)

With respect to an insured which is not rated upon experience, any premium discount given an insured

pursuant to this article after the initial four-year period provided in subdivision (1) shall be determined

by the State Insurance Commissioner based upon data received from the rating and statistical

organization designated by the commissioner pursuant to this article. (d) The Workers' Compensation

insurance policy of an insured shall be subject to an additional premium for the purposes of

reimbursement of a previously granted premium discount and to cancellation in accordance with the

policy if it is determined by the Department of Industrial Relations, Workers' Compensation Division,

that the insured misrepresented the compliance of its drug-free workplace program. (e) Each insurer

shall make an annual report to the rating and statistical organization designated by the State Insurance

Commissioner pursuant to this article illustrating the total dollar amount of drug-free workplace

premium credit. Standard earned premium figures reported pursuant to this subsection on the

aggregate calls for experience shall reflect the effects of the credits. The net standard premium shall

then be the basis of any premium adjustment. The drug-free workplace credits shall be reported under

a unique classification code or unit statistical reports submitted to the rating and statistical

organization designated by the State Insurance Commissioner. (f) The State Insurance Commissioner

may promulgate rules and regulations necessary for the implementation and enforcement of this

article.

25-5-333. Elements.—(a) A drug-free workplace program shall contain all the following elements: (1)

A written policy statement as provided in Section 25-5-334. (2) Substance abuse testing as provided

in Section 25-5-335. (3) Resources of employee assistance providers maintained in accordance with

Section 25-5-336. (4) Employee education as provided in Section 25-5-337(a). (5) Supervisor

training in accordance with Section 25-5-337(b). (b) In addition to the requirements of subsection (a),

a drug-free workplace program shall be implemented in compliance with the confidentiality standards

provided in Section 25-5-339.

25-5-334.Notice of testing.—(a) One time only, prior to testing, all employees and job applicants for

employment shall be given a notice of testing. In addition, all employees shall be given a written

policy statement from the employer which contains all of the following: (1) A general statement of

the employer's policy on employee substance abuse which shall identify: a. The types of testing an

employee or job applicant may be required to submit to, including reasonable suspicion or other basis

used to determine when the testing will be required. b. The actions the employer may take against an

employee or job applicant on the basis of a positive confirmed test result. (2) A statement advising an

employee or job applicant of the existence of this article. (3) A general statement concerning

confidentiality. (4) The consequences of refusing to submit to a drug test. (5) A statement advising an

employee of the Employee Assistance Program, if the employer offers the program, or advising the

employee of the employer's resource file of assistance programs and other persons, entities, or

organizations designed to assist employees with personal or behavioral problems. (6) A statement that

an employee or job applicant who receives a positive confirmed test result may contest or explain the

result to the employer within five working days after written notification of the positive test result. (7)

A statement informing an employee of the provisions of the federal Drug-Free Workplace Act, if

applicable to the employer. (b) An employer not having a substance abuse testing program in effect

on July 1, 1996, shall ensure that at least 60 days elapse between a general one-time notice to all

employees that a substance abuse testing program is being implemented and the beginning of the

actual testing. An employer having a substance abuse testing program in place prior to July 1, 1996,

shall not be required to provide a 60-day notice period. (c) An employer shall include notice of

substance abuse testing on vacancy announcements for those positions for which testing is required. A

notice of the employer's substance abuse testing policy shall also be posted in an appropriate and

conspicuous location on the employer's premises, and copies of the policy shall be made available for

inspection by the employees or job applicants of the employer during regular business hours in the

employer's personnel office or other suitable locations. All testing conducted by an employer shall be

in conformity with the standards and procedures established in this article and all applicable rules

adopted by the State Department of Industrial Relations pursuant to this article. Notwithstanding the

foregoing, an employer shall not have a legal duty under this article to request an employee or job

applicant to undergo testing.

25-5-335.Tests generally.—(a) An employer is required to conduct the following types of tests in

order to qualify for the Workers' Compensation insurance premium discounts provided under this

article. (1) An employer shall require job applicants to submit to a substance abuse test after

extending an offer of employment. Limited testing of job applicants by an employer shall qualify

under this article if the testing is conducted on the basis of reasonable classifications of job positions.

(2) An employer shall require an employee to submit to reasonable suspicion testing. (3) An employer

shall require an employee to submit to a substance abuse test if the test is conducted as part of a

routinely scheduled employee fitness-for-duty medical examination that is part of the employer's

established policy or that is scheduled routinely for all members of an employment classification or

group. (4) If the employee, in the course of employment, enters an Employee Assistance Program or a

rehabilitation program as the result of a positive test, the employer shall require the employee to

submit to a substance abuse test as a follow-up to the program. Notwithstanding the foregoing, if an

employee voluntarily entered the program, follow-up testing shall not be required. If follow-up testing

is conducted, the frequency of the testing shall be at least once a year for a two-year period after

completion of the program and advance notice of the testing date shall not be given to the employee.

(5) If the employee has caused or contributed to an on-the-job injury which resulted in a loss of work

time, the employer shall require the employee to submit to a substance abuse test. (b) Nothing in this

article shall prohibit a private employer from conducting random testing or other lawful testing of

employees. (c) All specimen collection and testing under this article shall be performed in accordance

with the following procedures: (1) A specimen shall be collected with due regard to the privacy of the

individual providing the specimen, and in a manner reasonably calculated to prevent substitution or

contamination of the specimen. (2) Specimen collection shall be documented, and the documentation

procedures shall include all of the following: a. Labeling of specimen containers so as to reasonably

preclude the likelihood of erroneous identification of test results. b. An opportunity for the employee

or job applicant to record any information he or she considers relevant to the test, including

identification of currently or recently used prescription or nonprescription medication or other relevant

medical information. The providing of information shall not preclude the administration of the test,

but shall be taken into account in interpreting any positive confirmed results. (3) Specimen collection,

storage, and transportation to the testing site shall be performed in a manner which reasonably

precludes specimen contamination or adulteration. (4) Each initial and confirmation test conducted

under this article, not including the taking or collecting of a specimen to be tested, shall be conducted

by a laboratory as described in subsection (d). (5) A specimen for a test may be taken or collected by

any of the following persons: a. A physician, a physician's assistant, a registered professional nurse, a

licensed practical nurse, a nurse practitioner, or a certified paramedic who is present at the scene of an

accident for the purpose of rendering emergency medical service or treatment. b. A qualified person

certified or employed by a laboratory certified by the National Institute on Drug Abuse, the College of

American Pathologists, or the Alabama Department of Human Resources. (6) Within five working

days after receipt of a positive confirmed test result from the laboratory, an employer shall inform the

employee or job applicant in writing of the positive test result, the consequences of the results, and the

options available to the employee or job applicant. (7) The employer shall provide to the employee or

job applicant, upon request, a copy of the test results. (8) An initial test having a positive result shall

be verified by a confirmation test. (9) An employer who performs drug testing or specimen collection

shall use chain of custody procedures to ensure proper record keeping, handling, labeling, and

identification of all specimens to be tested. (10) An employer shall pay the cost of all drug tests,

initial and confirmation, which the employer requires of employees. (11) An employee or job

applicant shall pay the cost of any additional tests not required by the employer. (12) If testing is

conducted based on reasonable suspicion, the employer shall promptly detail in writing the

circumstances which formed the basis of the determination that reasonable suspicion existed to

warrant the testing. A copy of this documentation shall be given to the employee upon request and the

original documentation shall be kept confidential by the employer as provided in this article and

retained by the employer for at least one year. (d)(1) No laboratory may analyze initial or

confirmation drug specimens unless: a. The laboratory is approved by the National Institute on Drug

Abuse or the College of American Pathologists. b. The laboratory has written procedures to ensure

the chain of custody. c. The laboratory follows proper quality control procedures including, but not

limited to: 1. The use of internal quality controls including the use of samples of known concentrations

which are used to check the performance and calibration of testing equipment, and periodic use of

blind samples for overall accuracy. 2. An internal review and certification process for drug test

results, conducted by a person qualified to perform that function in the testing laboratory. 3. Security

measures implemented by the testing laboratory to preclude adulteration of specimens and drug test

results. 4. Other necessary and proper actions taken to ensure reliable and accurate drug test results.

(2) a. A laboratory shall disclose to the employer a written test result report within seven working days

after receipt of the sample. All laboratory reports of a substance abuse test result shall, at a minimum,

state all of the following: 1. The name and address of the laboratory which performed the test and the

positive identification of the person tested. 2. Positive results on confirmation tests only, or negative

results, as applicable. 3. A list of the drugs for which the drug analyses were conducted. 4. The type

of tests conducted for both initial and confirmation tests and the minimum cut-off levels of the tests.

b. No report shall disclose the presence or absence of any drug other than a specific drug and its

metabolites listed pursuant to this article. (3) Laboratories shall provide technical assistance to the

employer, employee, or job applicant for the purpose of interpreting any positive confirmed test

results which could have been caused by prescription or nonprescription medication taken by the

employee or job applicant. (e) If an initial drug test is negative, the employer may seek a confirmation

test. Only those laboratories described in subsection (d) shall conduct confirmation drug tests. (f) All

positive initial tests shall be confirmed using the gas chromatography/mass spectrometry (GC/MC)

method or an equivalent or more accurate scientifically accepted methods approved by the National

Institute on Drug Abuse as the technology becomes available in a cost-effective form.

25-5-336.Employee assistance.—(a) If an employer has an Employee Assistance Program, the

employer shall inform the employee of the benefits and services of the Employee Assistance Program.

In addition, the employer shall provide the employee with notice of the policies and procedures

regarding access to and utilization of the program. (b) If an employer does not have an Employee

Assistance Program, the employer shall maintain a resource file of providers of other employee

assistance including drug and alcohol abuse programs, mental health providers, and other persons,

entities, or organizations available to assist employees with personal or behavioral problems and shall

notify the employee of the availability of the resource file. In addition, the employer shall post in a

conspicuous place a listing of providers or employee assistance in the area.

25-5-337.Education programs.—(a) An employer shall provide all employees with a semiannual

education program on substance abuse, in general, and its effects on the workplace, specifically. An

education program for a minimum of one hour should include, but is not limited to, the following

information: (1) The explanation of the disease model of addiction for alcohol and drugs. (2) The

effects and dangers of the commonly abused substances in the workplace. (3) The policies of the

company and procedures regarding substance abuse in the workplace and how employees who wish to

obtain substance abuse treatment can do so. (b) In addition to the education program provided in

subsection (a), an employer shall provide all supervisory personnel with a minimum of two hours of

supervisor training, which includes, but is not limited to, the following information: (1) How to

recognize signs of employee substance abuse. (2) How to document and collaborate signs of

employee substance abuse. (3) How to refer substance abusing employees to the proper treatment

providers.

Sec. 25-5-338.Construction.—(a) No physician-patient relationship is created between an employee or

job applicant and an employer, medical review officer, or any person performing or evaluating a drug

test solely by the establishment, implementation, or administration of a drug-testing program. (b)

Nothing in this article shall be construed to prevent an employer from establishing reasonable work

rules related to employee possession, use, sale, or solicitation of drugs, including convictions for drug

related offenses, and taking action based upon a violation of any of those rules. (c) Nothing in this

article shall be construed to operate retroactively, and nothing in this article shall abrogate the right of

an employer under state or federal law to conduct drug tests, or implement employee drug-testing

programs. Notwithstanding the foregoing, only those programs that meet the criteria outlined in this

article qualify for reduced Workers' Compensation insurance premiums under this article. (d) Nothing

in this article shall be construed to prohibit an employer from conducting medical screening or other

tests required, permitted, or not disallowed by any statute, rule, or regulation for the purpose of

monitoring exposure of employees to toxic or other unhealthy materials in the workplace or in the

performance of job responsibilities. The screening or tests shall be limited to the specific materials

expressly identified in the statute, rule, or regulation, unless prior written consent of the employee is

obtained for other tests. (e) No cause of action shall arise in favor of any person based upon the

failure of an employer to establish or conduct a program or policy for substance abuse testing.

25-5-339.Confidentiality.—(a) All information, interviews, reports, statements, memoranda, and test

results, written or otherwise, received by the employer through a substance abuse testing program are

confidential communications, but may be used or received in evidence, obtained in discovery, or

disclosed in any civil or administrative proceeding, except as provided in subsection (c). (b)

Employers, laboratories, medical review officers, employee assistance programs, drug or alcohol

rehabilitation programs, and their agents who receive or have access to information concerning test

results shall keep all information confidential. Release of such information under any other

circumstance shall be solely pursuant to a written consent form signed voluntarily by the person

tested, unless the release is compelled by an agency of the state or a court of competent jurisdiction or

unless deemed appropriate by a professional or occupational licensing board in a related disciplinary

proceeding. The consent form shall contain at a minimum all of the following: (1) The name of the

person who is authorized to obtain the information. (2) The purpose of the disclosure. (3) The precise

information to be disclosed. (4) The duration of the consent. (5) The signature of the person

authorizing release of the information. (c) Information on test results shall not be released or used in

any criminal proceeding against the employee or job applicant. Information released contrary to this

subsection shall be inadmissible as evidence in the criminal proceeding. (d) Nothing contained in this

article shall be construed to prohibit the employer or laboratory conducting a test from having access

to employee test information when consulting with legal counsel when the information is relevant to

its defense in a civil or administrative matter.

25-5-340.Certification; rules and regulations; fees.—The Department of Industrial Relations,

Workers' Compensation Division, shall promulgate by rule or regulation procedures and forms for the

certification of employers who establish and maintain a drug-free workplace which complies with this

article. The department may charge a fee for the certification of a drug-free workplace program in an

amount which shall approximate the administrative costs to the department of the certification. The

certification fees shall be deposited in a revolving account to fund the administrative costs of

certification and are hereby appropriated solely for that purpose. Certification of an employer shall be

required for each year in which a premium discount is granted.

25-4-78.—An individual shall be disqualified for total or partial unemployment: (3) DISCHARGE

FOR MISCONDUCT. a. If he was discharged or removed from his work for a dishonest or criminal

act committed in connection with his work or for sabotage or an act endangering the safety of others

or for the use of illegal drugs after previous warning or for the refusal to submit to or cooperate with a

blood or urine test after previous warning. Disqualification under this paragraph may be applied to

separations prior to separation from the most recent bona fide work only if the employer has filed a

notice with the director alleging that the separation was under conditions described in this paragraph in

such manner and within such time as the director may prescribe. (i) A confirmed positive drug test

that is conducted and evaluated according to standards set forth for the conduct and evaluation of such

tests by the U.S. Department of Transportation in 49 C.F.R. Part 40 or standards shown by the

employer to be otherwise reliable shall be a conclusive presumption of impairment by illegal drugs.

No unemployment compensation benefits shall be allowed to an employee having a confirmed

positive drug test if the employee had been warned that such a positive test could result in dismissal

pursuant to a reasonable drug policy. A drug policy shall be deemed reasonable if the employer shows

that all employees of the employer regardless of position or classification, are subject to testing under

the policy, and in those instances in which the employer offers as the basis for disqualification from

unemployment compensation benefits the results obtained pursuant to additional testing imposed on

some but not all classifications, if the employer can also offer some rational basis for conducting such

additional testing. Further, no unemployment compensation benefits shall be allowed if the employee

refuses to submit to or cooperate with a blood or urine test as set forth above, or if the employee

knowingly alters or adulterates the blood or urine specimen. (ii) For purposes of paragraph a. and item

(i) of paragraph a. of this subdivision, "warning" shall mean that the employee has been advised in

writing of the provisions of the employer's drug policy and that either testing positive pursuant to the

standards referenced above or the refusal to submit to or cooperate with a blood or urine test as set out

in the above referenced standards could result in termination of employment. This written notification

as herein described shall constitute a "warning" as used in paragraph a. and item (i) of paragraph a. of

this subdivision. (iii) To the extent that the issue is a positive drug test or the refusal to submit to or

cooperate with a blood or urine test, or if the employee knowingly alters or adulterates the blood or

urine sample, as distinguished from some other aspect of the employer's drug policy, this

disqualification under paragraph a. and item (i) of paragraph a. shall be the only disqualification to

apply, in connection with an individual's separation from employment. Other non-separation

disqualifications may apply. When an individual is disqualified under this paragraph: 1. He shall not

be entitled to benefits for the week in which the disqualifying event occurs or for any week thereafter

until he has reentered insured employment or employment of the nature described in subdivisions (5),

(6), (7), (8), (9), (10) or (18) of subsection (b) of Section 25-4-10, has earned wages equal at least to

10 times his weekly benefit amount and has been separated from such employment for a

nondisqualifying reason. 2. He shall not thereafter be entitled to any benefits under this chapter on

account of wages paid to him for the period of employment by the employer by whom he was

employed when the disqualifying event occurred. 3. For the purposes of the experience rating

provisions of Section 25-4-54: (i) No portion of any benefits based upon wages paid to the individual

for the period of employment by the employer by whom he was employed when the disqualifying

event occurred shall be charged to the employer's experience rating account. (ii) In the case of a

separation prior to the separation from the most recent bona fide work, if the only reason

disqualification under this paragraph a. was not assessed was the failure of the employer to properly

file a timely separation report with the director and the employer files such a report within 15 days

after the mailing of a notice of payment, then no portion of any benefits paid based upon the wages

paid for the period of employment ending in such prior separation shall be charged to the employer's

experience rating account. b. If he was discharged from his most recent bona fide work for actual or

threatened misconduct committed in connection with his work (other than acts mentioned in paragraph

a. of this subdivision (3)) repeated after previous warning to the individual. When an individual is

disqualified under this paragraph, or exempt from disqualification for a separation under such

conditions prior to his most recent bona fide work, the effect shall be the same as provided in

paragraph b. of subdivision (2) of this section for disqualification or exemption from disqualification

respectively. c. If he was discharged from his most recent bona fide work for misconduct connected

with his work: 1. He shall be disqualified from receipt of benefits for the week in which he was

discharged and for not less than the three nor more than the seven next following weeks, as

determined by the director in each case according to the seriousness of the conduct. 2. The total

amount of benefits to which he may otherwise be entitled as determined in accordance with Sections

25-4-74 and 25-4-75 shall be reduced by an amount equal to the product of the number of weeks for

which he shall be disqualified multiplied by his weekly benefit amount. 3. Only one-half of the

benefits paid to him based upon wages for that period of employment immediately preceding the

separation to which the disqualification applies shall be charged to the employer for the purposes of

the experience rating provisions of Section 25-4-54. If the individual has been separated from

employment, other than his most recent bona fide work, under conditions which would have been

disqualifying under paragraph c. of this subdivision (3), had the separation been from his most recent

bona fide work and the employer answers a notice of payment within 15 days after it is mailed to him

detailing the facts in connection with the separation, then only one-half of the benefits paid to him for

that period of employment immediately preceding the separation shall be charged to the employer for

the purposes of the experience rating provisions of Section 25-4-54. d. If he has been suspended as a

disciplinary measure connected with his work, or for misconduct connected with his work, he shall be

disqualified from benefits for the week or weeks (not to exceed four weeks) in which, or for which, he

is so suspended and the total amount of benefits to which he may otherwise be entitled shall be

reduced in the same manner and to the same extent as provided in subparagraph 2 of paragraph c. of

this subdivision (3).

Alaska 23.10.620. DRUG AND ALCOHOL TESTING BY EMPLOYERS. Employer policy. (a) Under

AS 23.10.600 — 23.10.699, an employer may only carry out the testing or retesting for the presence

or evidence of use of drugs or alcohol after adopting a written policy for the testing and retesting and

informing employees of the policy. The employer may inform employees by distributing a copy of the

policy to each employee subject to testing or making the policy available to employees in the same

manner as the employer informs its employees of other personnel practices, including inclusion in a

personnel handbook or manual or posting in a place accessible to employees. The employer shall

inform prospective employees that they must undergo drug testing. (b) The written policy on drug and

alcohol testing must include, at a minimum, (1) a statement of the employer's policy respecting drug

and alcohol use by employees; (2) a description of those employees or prospective employees who are

subject to testing; (3) the circumstances under which testing may be required; (4) the substances as to

which testing may be required; (5) a description of the testing methods and collection procedures to be

used, including an employee's right to a confirmatory drug test to be reviewed by a licensed physician

or doctor of osteopathy after an initial positive drug test result in accordance with AS 23.10.640(d);

(6) the consequences of a refusal to participate in the testing; (7) any adverse personnel action that

may be taken based on the testing procedure or results; (8) the right of an employee, on the employee's

request, to obtain the written test results and the obligation of the employer to provide written test

results to the employee within five working days after a written request to do so, so long as the written

request is made within six months after the date of the test; (9) the right of an employee, on the

employee's request, to explain in a confidential setting, a positive test result; if the employee requests

in writing an opportunity to explain the positive test result within 10 working days after the employee

is notified of the test result, the employer must provide an opportunity, in a confidential setting, within

72 hours after receiving the employee's written notice, or before taking adverse employment action;

(10) a statement of the employer's policy regarding the confidentiality of the test results. (c) An

employer may require the collection and testing of a sample of an employee's or prospective

employee's urine or breath for any job-related purpose consistent with business necessity and the terms

of the employer's policy, including (1) investigation of possible individual employee impairment; (2)

investigation of accidents in the workplace; an employee may be required to undergo drug testing or

alcohol impairment testing for an accident if the test is taken as soon as practicable after an accident

and the test is administered to employees who the employer reasonably believes may have contributed

to the accident; (3) maintenance of safety for employees, customers, clients, or the public at large; (4)

maintenance of productivity, the quality of products or services, or security of property or information;

(5) reasonable suspicion that an employee may be affected by the use of drugs or alcohol and that the

use may adversely affect the job performance or the work environment. (d) In addition to tests

required under (c) of this section, an employer may require employees or groups of employees to

undergo drug testing on a random or chance basis. (e) If an employer institutes a policy of drug testing

or alcohol impairment testing under AS 23.10.600 — 23.10.699, the policy must identify which

employees or positions are subject to testing. An employer must test all or part of the work force based

on consideration of safety for employees, customers, clients, or the public at large. An employer may

not initiate a testing program under AS 23.10.600 — 23.10.699 until at least 30 days after the

employer notifies employees of the employer's intent to implement the program and makes written

copies of the policy available as required by (a) of this section. (f) The provisions of AS 23.10.600 —

23.10.699 may not be construed to discourage, restrict, limit, prohibit, or require on-site drug testing

or alcohol impairment testing.

23.10.630. Collection of samples. (a) An employer may test an employee for the presence of drugs or

for alcohol impairment. An employer may test a prospective employee for the presence of drugs. (b)

In order to test reliably, an employer may require an employee or prospective employee to provide a

sample of the individual's urine or breath and to present reliable individual identification to the person

collecting the sample. Collection of the sample must conform to the requirements of AS 23.10.600 —

23.10.699. The employer may designate the type of sample to be used for testing. (c) An employer

shall normally schedule a drug test or an alcohol impairment test of employees during, or immediately

before or after, a regular work period. Alcohol impairment or drug testing required by an employer is

considered to be work time for the purposes of compensation and benefits for current employees.

Sample collection shall be performed in a manner that guarantees the individual's privacy to the

maximum extent consistent with ensuring that the sample is not contaminated, adulterated, or

misidentified. (d) An employer shall pay the entire actual costs for drug testing and alcohol

impairment testing required of employees and prospective employees. An employer shall also pay

reasonable transportation costs to an employee if the required test is conducted at a location other than

the employee's normal work site.

23.10.645. On-site testing. (a) An employer may include on-site drug and alcohol tests of employees

and prospective employees as part of the employer's drug and alcohol testing policy under AS

23.10.600 — 23.10.699. In on-site testing under this section, an employer may only use products

approved by the Food and Drug Administration for employee testing and shall use the products in

accordance with the manufacturer's instructions. On-site testing under this section may only be

conducted by a test administrator who is certified under AS 23.10.650(b). (b) In on-site testing under

this section, the specimen to be tested must be kept in sight of the employee or applicant who is the

subject of the test. The test administrator shall (1) conduct the test in a manner that allows the subject

of the test to observe the testing procedure and the results; in the case of a sight-impaired employee,

the employee may request the presence of an observer; however, the test administrator is not required

to delay collection of the sample or administration of the test because of the sight-impaired employee's

request; (2) complete the sample documentation required under AS 23.10.640(a); (3) prepare a written

record of the results of the on-site test. (c) An employer may not take permanent employment action

against an employee based on an unconfirmed, screen, positive on-site test result. If an employer

takes temporary adverse employment action based on an on-site test result, the employer shall restore

the employee's wages and benefits if the confirmatory test result is negative or if the employee

demonstrates that the positive test result was caused by drugs taken in accordance with a valid

prescription of the employee or by lawful nonprescription drugs.

23.10.600. Employer protection from litigation. (a) If an employer has established a drug and

alcohol testing policy and initiated a testing program under AS 23.10.600 — 23.10.699, a person may

not bring an action for damages against the employer for (1) actions in good faith based on the results

of a positive drug test or alcohol impairment test; (2) failure to test for drugs or alcohol impairment or

failure to test for a specific drug or another controlled substance; (3) failure to test or, if tested, failure

to detect a specific drug or other substance, a medical condition, or a mental, emotional, or

psychological disorder or condition; or (4) termination or suspension of a drug or alcohol prevention

or testing program or policy. (b) A person may not bring an action for damages based on test results

against an employer who has established and implemented a drug and alcohol testing program under

AS 23.10.600 — 23.10.699 unless the employer's action was based on a false positive test result and

the employer knew or clearly should have known that the result was in error and ignored the true test

result because of reckless or malicious disregard for the truth or the willful intent to deceive or be

deceived. (c) In a claim, including a claim under AS 23.10.600 — 23.10.699, if it is alleged that an

employer's action was based on a false positive test result, (1) there is a rebuttable presumption that

the test result was valid if the employer complied with the provisions of AS 23.10.600 — 23.10.699;

and (2) the employer is not liable for monetary damages if the employer's reliance on a false positive

test result was reasonable and in good faith. (d) A person may not bring an action for damages against

an employer for an action taken related to a false negative drug test or alcohol impairment test. (e) A

person may not bring an action against an employer based on failure of the employer to establish a

program or policy on substance abuse prevention or to implement drug testing or alcohol impairment

testing.

23.10.640. Testing procedures. (a) Sample collection and testing for alcohol impairment and drugs

under AS 23.10.600 — 23.10.699 shall be performed under reasonable and sanitary conditions. The

person collecting samples shall document the sample, including labeling the sample to preclude to the

extent reasonable the possibility of misidentification of the person tested in relation to the test result

provided, and shall provide the person to be tested with an opportunity to provide medical information

that may be relevant to the test, including identifying current or recently used prescription and

nonprescription drugs. (b) Sample collection, storage, and transportation to the place of testing shall be

performed in a manner reasonably designed to preclude the possibility of sample contamination,

adulteration, or misidentification. (c) Sample testing must comply with scientifically accepted

analytical methods and procedures. Except for on-site testing under AS 23.10.645, drug testing shall

be conducted at a laboratory approved or certified by the Substance Abuse and Mental Health Services

Administration or the College of American Pathologists, American Association of Clinical Chemists.

(d) Drug testing, including on-site drug testing, must include confirmation of a positive drug test

result. The confirmation must be by use of a different analytical process than was used in the initial

drug screen. The second or confirmatory drug test shall be a gas chromatography mass spectrometry.

An employer may not rely on a positive drug test unless the confirmatory drug test results have been

reviewed by a licensed physician or doctor of osteopathy. The physician or osteopath shall 1) contact

the employee within 48 hours and offer an opportunity to discuss the confirming test result; (2)

interpret and evaluate the positive drug test results for legal use; And 3) report test results that have

been caused by prescription medication as negative. (e) A drug test conducted under this section or in

an on-site test under AS 23.10.645 for a drug for which the United States Department of Health and

Human Services has established a cutoff level shall be considered to have yielded a positive result if

the test establishes the presence of the drug at levels equal to or greater than that cutoff level. For a

drug for which the United States Department of Health and Human Services has not established a

cutoff level, the employer shall, in the written policy under AS 23.10.620, inform employees of the

cutoff level that the employer will use to establish the presence of the drug.

23.10.650. Training of test administrators. (a) Each employer shall ensure that at least one

designated employee receives at least 60 minutes of training on alcohol misuse and at least an

additional 60 minutes of training on the use of controlled substances. The training will be used by the

designee to determine whether reasonable suspicion exists to require an employee to undergo testing

under AS 23.10.630. (b) If an employer administers on-site drug or alcohol tests to test employees or

prospective employees under AS 23.10.645, the employer shall ensure that each person who will be

administering the on-site test receives training and meets the qualifications of this subsection. An on-

site test administrator must (1) have been trained by the manufacturer of the test or the manufacturer's

representative on the proper procedure for administering the test and accurate evaluation of on-site test

results; training must be conducted in person by a trainer from the manufacturer or the manufacturer's

representative; (2) be certified in writing by the manufacturer or the manufacturer's representative as

competent to administer and evaluate the on-site test; (3) have been trained to recognize adulteration

of a sample to be used in on-site testing; and (4) sign a statement that clearly states that the on-site test

administrator will hold all information related to any phase of a drug test confidential.

23.10.655. Disciplinary procedures. (a) An employer may take adverse employment action based on

(1) a positive drug test or alcohol impairment test result that indicates a violation of the employer's

written policy; (2) the refusal of an employee or prospective employee to provide a drug testing

sample; or (3) the refusal of an employee to provide an alcohol impairment testing sample. (b)

Adverse employment action under (a) of this section may include (1) a requirement that the employee

enroll in an employer provided or employer approved rehabilitation, treatment, or counseling program;

the program may include additional drug testing and alcohol impairment testing; the employer may

require participation in the program as a condition of employment; costs of participating in the

program may or may not be covered by the employer's health plan or policies; (2) suspension of the

employee, with or without pay, for a designated period of time; (3) termination of employment; (4) in

case of drug testing, refusal to hire a prospective employee; and (5) other adverse employment action.

23.10.660. Confidentiality of results; access to records. A communication received by an employer

relevant to drug test or alcohol impairment test results and received through the employer's testing

program is a confidential and privileged communication and may not be disclosed

except (1) to the tested employee or prospective employee or another person designated in writing by

the employee or prospective employee; (2) to individuals designated by an employer to receive and

evaluate test results or hear the explanation of the employee or prospective employee; or (3) as

ordered by a court or governmental agency.

23.10.670. Effect of mandatory testing obligations. An employer who is obligated by state or

federal requirements to have a drug testing or alcohol impairment testing policy or program shall

receive the full benefits of AS 23.10.600 — 23.10.699 even if the required policy or program is not

consistent with AS 23.10.600 — 23.10.699, so long as the employer complies with the state or federal

requirements applicable to the employer's operations.

14.09.025. Drug testing for school bus drivers. (a) A school district or regional educational

attendance area that provides for the transportation of pupils shall require that the drivers of motor

vehicles used to transport pupils submit to testing for the use of drugs and alcohol. The testing

program must include random testing. A driver who tests positive for the improper use of drugs or

alcohol may be disciplined, including termination from employment. (b) For a driver who is not

required to have a commercial driver's license, an employer (1) shall keep and maintain records of the

testing for improper use of drugs or alcohol on a confidential basis and may only release the results

with the written consent of the employee; and (2) may not retain false positive test results in the

employee's employment records and may not release information about a false positive test without

the written consent of the employee. (c) The department shall adopt regulations to implement this

section. The regulations must include a provision for a hearing before discipline is imposed. (d) In

this section, "improper use of drugs or alcohol" means use that constitutes a criminal offense and use

that violates regulations adopted by the department under this section.

Arizona 23-493.01. Collection of samples A. In order to test reliably for the presence of drugs, an employer

may require samples from its employees and prospective employees and may require presentation of

reliable individual identification from the person being tested to the person collecting the samples.

Collection of the sample shall conform to the requirements of this article. The employer may designate

the type of sample to be used for this testing. B. In order to test reliably for alcohol impairment, an

employer may require samples from its employees and identification from the person being tested to

the person collecting the samples. Collection of the sample shall conform to the requirements of this

article. The employer may designate the type of sample to be used for this testing.

23-493.02. Scheduling of tests -- Regarding the timing and cost of drug tests and alcohol impairment tests, and in order for an employer to qualify for the benefits of this article: 1. Any drug testing or

alcohol impairment testing by an employer of employees normally shall occur during, or immediately

before or after, a regular work period. The testing by an employer shall be deemed work time for the

purposes of compensation and benefits for current employees. 2. An employer shall pay all actual

costs for drug testing and alcohol impairment testing required of employees by the employer. An

employer may, at its discretion, pay the costs for drug testing of prospective employees. 3. An

employer shall pay reasonable transportation costs to current employees if their required tests are

conducted at a location other than the employee's normal work site.

23-493.03. Testing procedures -- All sample collection and testing for drugs and alcohol impairment under this article shall be performed according to the following conditions: 1. The collection of

samples shall be performed under reasonable and sanitary conditions. 2. Sample collections shall be

documented and these documentation procedures shall include both of the following: (a) Labeling of

samples in order to reasonably preclude the possibility of misidentification of the person tested in

relation to the test result provided. (b) An opportunity for the person to be tested to provide

notification of any information that may be considered relevant to the test, including identification of

currently or recently used prescription or nonprescription drugs or other relevant medical information.

3. Sample collection, storage and transportation to the place of testing shall be performed in a manner

reasonably designed to preclude the possibility of sample contamination, adulteration or

misidentification. 4. Sample testing shall comply with scientifically accepted analytical methods and

procedures. Drug testing shall be conducted at a laboratory approved or certified by the United States

department of health and human services, the college of American pathologists or the department of

health services. 5. Drug testing shall include confirmation of any positive drug test results for employees. Confirmation of positive drug test results for employees shall be by use of a different

chemical process than was used in the initial drug screen. The second or confirmatory drug test shall

be a chromatographic technique such as gas chromatography-mass spectrometry or another

comparably reliable analytical method.

23-493.04. Testing policy requirements -- A. Testing or retesting for the presence of drugs or alcohol by an employer shall be carried out within the terms of a written policy that has been

distributed to every employee subject to testing or that has been made available to employees in the

same manner as the employer informs its employees of other personnel practices, including inclusion

in a personnel handbook or manual or posting in a place accessible to employees. The employer shall

inform prospective employees that they must undergo drug testing. The written policy shall include at

least the following: 1. A statement of the employer's policy respecting drug and alcohol use by employees. 2. A description of those employees or prospective employees who are subject to testing. 3. The circumstances under which testing may be required. 4. The substances as to which testing may be required. 5. A description of the testing methods and collection procedures to be used. 6. The consequences of a refusal to participate in the testing. 7. Any adverse personnel action that may be taken based on the testing procedure or results. 8. The right of an employee, on request, to obtain the written test results. 9. The right of an employee, on request, to explain in a confidential setting, a positive test result. 10. A statement of the employer's policy regarding the confidentiality of the test results. B. Within the terms of the written policy, an employer may require the collection and testing of samples for any job-related purposes consistent with business necessity including: 1. Investigation of possible individual employee impairment. 2. Investigation of accidents in the workplace. Employees may be required to undergo drug testing or alcohol impairment testing for accidents if the

test is taken as soon as practicable after an accident and the test is administered to employees who the

employer reasonably believes may have contributed to the accident. 3. Maintenance of safety for

employees, customers, clients or the public at large. 4. Maintenance of productivity, quality of

products or services or security of property or information. 5. Reasonable suspicion that an employee

may be affected by the use of drugs or alcohol and that the use may adversely affect the job

performance or the work environment. C. In addition to the provisions of subsection B, employees or

groups of employees may be required to undergo drug testing on a random or chance basis. D. If an

employer institutes a policy of drug testing or alcohol impairment testing under this article, all

compensated employees including officers, directors and supervisors shall be uniformly included in

the testing policy. E. Nothing in this article shall be construed to encourage, discourage, restrict, limit,

prohibit or require on-site drug testing or alcohol impairment testing.

23-493.05. Disciplinary procedures -- An employer may take adverse employment action based on a positive drug test or alcohol impairment test. On receipt of a positive drug test or alcohol impairment

test result that indicates a violation of the employer's written policy, on the refusal of an employee or

prospective employee to provide a drug testing sample or on the refusal of an employee to provide an

alcohol impairment testing sample, an employer may use that test result or test refusal as a basis for

disciplinary or rehabilitative actions that may include any of the following: 1. A requirement that the employee enroll in an employer provided or employer approved rehabilitation, treatment or counseling

program, which may include additional drug testing and alcohol impairment testing, participation in

which may be a condition of continued employment and the costs of which may or may not be

covered by the employer's health plan or policies. 2. Suspension of the employee, with or without pay, for a designated period of time. 3. Termination of employment. 4. In the case of drug testing, refusal to hire a prospective employee. 5. Other adverse employment action.

23-493.06. Employer protection from litigation -- No cause of action is or may be established for any person against an employer who has established a policy and initiated a testing program in

accordance with this article for any of the following: 1. Actions in good faith based on the results of a positive drug test or alcohol impairment test. 2. Failure to test for drugs or alcohol impairment or failure to test for a specific drug or any other controlled substance. 3. Failure to test or, if tested,

failure to detect any specific drug or other substance, any medical condition or any mental, emotional

or psychological disorder or condition. 4. Termination or suspension of any substance abuse prevention or testing program or policy.

23-493.07. Causes of action based on test results -- A. No cause of action is or may be established for any person against an employer who has established a program of drug testing or alcohol

impairment testing in accordance with this article, unless the employer's action was based on a false

positive test result and the employer knew or clearly should have known that the result was in error

and ignored the true test result because of reckless or malicious disregard for the truth or the willful

intent to deceive or be deceived. B. In any claim, including a claim under this article, if it is alleged that an employer's action was based on a false positive test result: 1. There is a rebuttable presumption that the test result was valid if the employer complied with the provisions of this article. 2. The

employer is not liable for monetary damages if its reliance on a false positive test result was

reasonable and in good faith. C. There is no employer liability for any action taken related to a false negative drug test or alcohol impairment test.

23-493.08. Limits to causes of action -- A. No cause of action for defamation of character, libel,

slander or damage to reputation is or may be established for any person against an employer who has

established a program of drug testing or alcohol impairment testing in accordance with this article

unless all of the following apply: 1. The results of that test were disclosed to a person other than the

employer, an authorized employee, agent or representative of the employer, the tested employee, the

tested prospective employee or any other person authorized or privileged by law to receive the

information. 2. The information disclosed was a false positive test result. 3. The false positive test

result was disclosed negligently. 4. All elements of an action for defamation of character, libel,

slander or damage to reputation as established by law are satisfied. B. No cause of action arises in

favor of any person against an employer based on the failure of the employer to establish a program or

policy on substance abuse prevention or to implement drug testing or alcohol impairment testing. C.

Compliance with this article by employers is voluntary and no cause of action arises as a result of

having a drug testing and alcohol impairment testing policy that is not in compliance with this article.

23-493.09. Confidentiality of results; access to records -- A. All communications received by an

employer relevant to drug test or alcohol impairment test results and received through the employer's

testing program are confidential communications and may not be used or received in evidence,

obtained in discovery or disclosed in any public or private proceeding, except in a proceeding related

to an action taken by an employer or employee under this article or except disclosure to: 1. The tested

employee or prospective employee or any other person designated in writing by that employee or

prospective employee. 2. Individuals designated by the employer to receive and evaluate test results

or hear the explanation of the employee or prospective employee. 3. An arbitrator or mediator, or a

court or governmental agency as authorized by state or federal law. B. The tested employee has a

right of access to the written test results that pertain to that individual, subject to the maintenance of

confidentiality for other individuals. C. Except as otherwise permitted by law, no sample taken for

testing pursuant to this article shall be tested for any substance or condition except unlawful drugs or

alcohol as defined in this article.

23-493.10. Construction; collective bargaining -- Nothing in this article shall be construed to

infringe on, contradict, preempt or otherwise conflict with the valid provisions of any collective

bargaining agreement or to otherwise abridge or infringe on the rights and responsibilities of all parties

in the collective bargaining process to negotiate collective bargaining agreements. These contract

provisions are fully valid and enforceable, notwithstanding the provisions of this article. An employer

who follows the provisions of a drug testing or alcohol impairment testing policy negotiated or

bargained to impasse with the collective bargaining representative of its employees or consistent with

the terms of a collective bargaining agreement, shall receive the full benefits of this article, even if that

policy does not conform to all of the provisions of this article.

23-493.11. Effect of mandatory testing obligations -- An employer who is obligated by state or

federal requirements to have a drug testing or alcohol impairment testing policy or program shall

receive the full benefits of this article, even if that policy or program does not conform to all of the

provisions of this article, provided the employer complies with the state or federal requirements

applicable to the employer's operations.

Arkansas 11-14-101.—(a) It is the intent of the General Assembly to promote drug-free workplaces in order that

employers in this state may be afforded the opportunity to maximize their levels of productivity,

enhance their competitive positions in the marketplace and reach their desired levels of success

without experiencing the costs, delays and tragedies associated with work-related accidents resulting

from drug or alcohol abuse by employees. It is further the intent of the General Assembly that drug

and alcohol abuse be discouraged and that employees who choose to engage in drug or alcohol abuse

face the risk of unemployment and the forfeiture of workers' compensation benefits. (b) If an

employer implements a drug-free workplace program in accordance with this chapter which includes

notice, education and procedural requirements for testing for drugs and alcohol pursuant to rules

developed by the Workers' Health and Safety Division of the Workers' Compensation Commission,

the covered employer may require the employee to submit to a test for the presence of drugs or alcohol

and, if a drug or alcohol is found to be present in the employee's system at a level prescribed by statute

or by rule adopted pursuant to this chapter, the employee may be terminated and forfeits eligibility for

workers' compensation medical and indemnity benefits. However, a drug-free workplace program

must require the covered employer to notify all employees that it is a condition of employment for an

employee to refrain from reporting to work or working with the presence of drugs or alcohol in the

employee's body and, if an injured employee refuses to submit to a test for drugs or alcohol, the

employee forfeits eligibility for workers' compensation medical and indemnity benefits. In the event of

termination, an employee shall be entitled to contest the test results before the Department of Labor.

11-14-102. As used in this chapter, unless the context otherwise requires: (1) "Chain of custody"

refers to the methodology of tracking specified materials or substances for the purpose of maintaining

control and accountability from initial collection to final disposition for all such materials or

substances, and providing for accountability at each stage in handling, testing and storing specimens

and reporting test results; (2) "Confirmation test," "confirmed test" or "confirmed drug or alcohol test"

means a second analytical procedure used to identify the presence of a specific drug or alcohol or

metabolite in a specimen, which test must be different in scientific principle from that of the initial test

procedure and must be capable of providing requisite specificity, sensitivity and quantitative accuracy;

(3) "Covered employer" means a person or entity that employs a person, is covered by the Workers'

Compensation Law, §11-9-101 et seq., maintains a drug-free workplace pursuant to this chapter and

includes on the posting required by §11-14-105 a specific statement that the policy is being

implemented pursuant to the provisions of this chapter. This chapter shall have no effect on employers

who do not meet this definition; (4) "Director" means the Director of the Workers' Health and Safety

Division of the Workers' Compensation Commission; (5) "Division" means the Workers' Health and

Safety Division of the Workers' Compensation Commission; (6) "Drug" means any controlled

substance subject to testing pursuant to drug testing regulations adopted by the Department of

Transportation. A covered employer shall test an individual for all such drugs in accordance with the

provisions of this chapter. The director may add additional drugs by rule in accordance with §11-14-

111; (7) "Drug or alcohol rehabilitation program" means a service provider that provides confidential,

timely and expert identification, assessment and resolution of employee drug or alcohol abuse; (8)

"Drug test" or "test" means any chemical, biological or physical instrumental analysis administered by

a laboratory authorized to do so pursuant to this chapter, for the purpose of determining the presence

or absence of a drug or its metabolites pursuant to regulations governing drug testing adopted by the

Department of Transportation or such other recognized authority approved by rule by the director; (9)

"Employee" means any person who works for salary, wages or other remuneration for a covered

employer; (10) (A) "Employee assistance program" means an established program capable of: (i)

Providing expert assessment of employee personal concerns; (ii) Confidential and timely identification

services with regard to employee drug or alcohol abuse; (iii) Referrals of employees for appropriate

diagnosis, treatment and assistance; and (iv) Follow-up services for employees who participate in the

program or require monitoring after returning to work. (B) If, in addition to the above activities, an

employee assistance program provides diagnostic and treatment services, these services s