Five of the Most Restrictive States for Drug Testing
By Andrew Current of the Current Consulting Group, LLC
I was once in a discussion with coworkers about blind obedience when someone suggested that there is no such thing. He contended that if you aren’t aware of a rule, then you can’t really obey it. In the same way, there is no such thing as blind compliance. If you aren’t aware of the requirements of a state drug testing law, then you might get lucky on a couple of things, but it would be nearly impossible for you to be “blindly” compliant on all aspects of your substance abuse testing program. Whether you are starting a testing program from scratch or updating an existing program, keeping up to date on state laws is essential. Below are some of the most restrictive states on drug testing that illustrate the importance of regularly reviewing state law to ensure compliance.
Despite not having a mandatory drug testing statute on the books, California proves to be one of the trickiest states for crafting and maintaining a workplace drug testing policy. In addition to strictly enforced privacy laws, laboratory licensing regulations, and labor laws, years of case law decisions provide detailed list of do’s and don’ts in the state. For example:
- Business Necessity – in Loder v. Glendale the court established that an employer must demonstrate a competing interest of compelling need to justify a drug test that would otherwise constitute an invasion of privacy.
- Reasonable Suspicion – in Kraslawsky v. Upper Deck the court found that an employer must clearly demonstrate reasonable suspicion. Without such, a drug test would be considered a random test and thus an invasion of privacy.
It is critical that employer’s doing business in California construct their policies after a thorough review and understanding of the impact of case law in the state.
Maine’s drug testing law places many restrictions on employers, including limiting random drug testing. Maine’s law restricts how and when random testing can be conducted. As well, Maine’s Department of Labor regulations add even more restrictions on random or “arbitrary” testing in Maine. For example:
- If an employer and his or her employees reach a collective agreement on random drug testing, an employer may conduct random drug testing according to the agreement.
- If an employer does not have a collective bargaining agreement, he or she may still conduct drug testing of safety-sensitive positions.
- If an employer has 50 or more employees not covered by a collective bargaining agreement, then the following conditions must be met:
- The program must be developed by a committee of 10 employees eligible to be tested.
- Selection for testing must be conducted by someone not under the influence of the employer from an anonymous list.
- The program developed by the employee committee must be approved by the state Department of Labor.
This isn’t all. The law requires certified labs, confirmatory testing, specimen storage by lab, supervisor training, employee education, and employee assistance programs. It also requires collections take place in a medical facility. While this would rule out instant testing, the law specifically permits on-site tests, thus adding confusion into the mix.
Rhode Island has a fairly restrictive mandatory drug testing law with very specific requirements governing testing circumstances and procedures. Despite these strict regulations, drug testing is possible and permitted. Drug testing is dependent upon reasonable suspicion. Without it, no testing may be conducted. This rules out suspicion-less testing methods such as random testing.
Applicant testing is permitted in Rhode Island after a conditional offer of employment has been made. Disciplinary procedures are permitted, but not for a first-time positive result. In such a case, an employer is required by law to refer the employee who tested positive to rehabilitation. Follow-up testing is allowed in conjunction with a rehabilitation referral. If an individual’s testing shows continued drug use, he or she may then be terminated. If an employer violates the mandatory drug testing law, he or she may face a fine of up to $1,000, up to one year in prison, or both.
Vermont’s drug testing law provides a restrictive drug testing environment. Although it is legal to conduct drug tests, there are many requirements to bear in mind. If probable cause exists, almost any type of drug testing is permitted. However, this is not the case for random testing, which is prohibited in all circumstances. In addition to probable cause, an employer must have an employee assistance program or be able to refer employees to such a program in order to conduct any type of drug testing. Point of collection testing is prohibited. The law only refers to lab-based testing and provides qualifications for labs (not for instant testing devices). Testing specimens are limited to urine and hair for drugs, breath for alcohol, and blood only when requested by a donor. Employers are required to cover the cost of all drug tests that they require.
Iowa’s mandatory drug testing law is very detailed. With so many restrictions, it’s easy to assume that it makes drug testing more difficult; however, just the opposite is true. Because the law spells things out in so much detail, drug testing in Iowa is relatively straightforward. For example, look at disciplinary procedures. Upon receipt of a confirmed positive test result for drugs or alcohol, or upon refusal by an employee to submit to drug testing, employers can discipline the individual in the following ways:
- Rehabilitation, treatment, or counseling. This may include additional drug testing. Success in a program may be required in order to continue employment. The employer is not required to cover costs of program.
- Suspension of an employee, with or without pay, for a designated period of time.
- Termination of the individual’s employment.
- Refusal to hire a prospective employee.
- Other adverse employment action in conformance with a written policy, including any relevant collective bargaining agreement.
Otherwise, all types of testing are permitted: pre-employment, reasonable suspicion, post-accident, etc. The law clearly defines a sample as blood, breath, urine, or oral fluid. Collection procedures and chain of custody protocol are outlined in the law and MRO requirements are well-defined. In fact, one of the only things left out of the law is instant testing, which is not mentioned at all in the law (either to prohibit or to permit it).
While state drug testing laws can prove complicate, they are not impossible to navigate. With good information, the task becomes simpler. And if you have an experienced team of drug testing experts on your side, crafting and maintaining a strong and compliant policy becomes even easier.
Andrew Current, Compliance Director for Current Consulting Group, LLC, researches state and federal laws, manages Current Compliance, an on-line state laws database, and serves as the managing editor of the e-newsletter State Drug Testing Laws Monthly as well as other publications.