Workplace Drug and Alcohol Testing Laws.

State-by-State Legal Status Guide

Workplace Drug and Alcohol Testing Laws.

August 2016 Update

WORKPLACE DRUG AND ALCOHOL STATE-BY-STATE LEGAL STATUS GUIDE

This document provides an overview of the status and procedural requirements for drug and alcohol testing from state to state. Several types of law govern drug and alcohol testing. Mandatory laws lay out requirements for any employer in that state who conducts testing. Voluntary laws provide requirements only for an employer who elects to participate in the voluntary law in order to receive a benefit, such as limited legal protection. If an employer chooses not to participate, it is not affected by the voluntary law requirements. Voluntary state laws are marked as such in this document; otherwise a state law is mandatory. Brief notes are provided at the end of each state summarizing workers' compensation and unemployment compensation laws as they relate to drug and alcohol testing. Any requirements for workers' and unemployment compensation apply only when testing is used to deny benefits and are usually separate from the mandatory or voluntary workplace testing law in a given state.

Alere Toxicology has retained the services of Current Consulting Group, LLC (publisher of The On-Line Ultimate Guide to State Drug Testing Laws at ), to research and present the information contained in this guide. This guide and the information contained herein is provided for informational purposes only. Neither Alere Toxicology nor Current Consulting Group, LLC, are law firms, and no attorneys were employed or consulted in the compilation and presentation of the information contained in this guide. This guide is not intended as a substitute for the legal advice of an attorney or that of a drug-testing expert, knowledgeable of the user's individual circumstances. Alere Toxicology and Current Consulting Group, LLC encourage users to consult with an attorney or a drug testing expert

prior to finalizing any drug-testing policy decisions based, in part or in whole, on the information contained in this guide. Users of this guide should be aware that legislative, regulatory, and case law developments regularly impact and can change the legal status of drug testing on a state-by-state basis. As such, Alere Toxicology and Current Consulting Group, LLC, make no claim as to the accuracy of the information found in this guide. Alere Toxicology and Current Consulting Group, LLC, are not responsible for the use of the information contained in this guide by readers, either individually or collectively. Compliance with state drugand alcohol-testing legal requirements is the sole responsibility of the individual user of this guide as well as that of the entity he or she may represent or to whom he or she may provide services.

ABBREVIATIONS

? American Association for Clinical Chemistry (AACC) ? Blood alcohol content (BAC) ? Blood alcohol test (BAT) ? Clinical Laboratory Improvement Amendments (CLIA) ? College of American Pathologists (CAP) ? Department of Transportation (DOT) ? Employee assistance program (EAP) ? Food and Drug Administration (FDA) ? Forensic Urine Drug Testing (FUDT)

? Gas Chromatography Mass Spectrometry (GC-MS) ? Medical review officer (MRO) ? National Highway Traffic Safety Administration (NHTSA) ? National Institute on Drug Abuse (NIDA) ? Point of care testing (POCT) ? Substance Abuse and Mental Health

Administration (SAMHSA)

? Unemployment compensation (UC) ? Workers' compensation (WC)

ALABAMA

Legal status for workplace drug and alcohol testing

Alabama has a voluntary drug testing law. For companies that wish to qualify for a 5% discount on their workers' compensation premiums they must comply with this law; other companies are not mandated to comply with this statute. THIS CHART REFLECTS THE REQUIREMENTS OF THE VOLUNTARY LAW.

ALABAMA CODE 25-5-330 to 25-5-340 (2000) ALABAMA CODE 480-5-6-1 to .04 (1996)

Area of focus

Status

Comments

Setting/circumstance

Defined

The following types of testing are required with conditions: pre-employment, periodic, follow-up and for cause. Return-to-duty, post-accident and random permitted, but not required.

Drugs tested (panel)

Defined

Amphetamines, cannabinoids, phencyclidine, methadone, opiates, cocaine, methaqualone, barbiturates, benzodiazepines, propoxyphene, or a metabolite of any of these substances.

Specimens permitted

Defined

Broadly defined: tissue, blood, breath, urine, or other product of the human body capable of revealing the presence of drugs or their metabolites or of alcohol.

POCT screening devices

Prohibited

Permitted outside this voluntary law but not by companies that wish to qualify for the WC discount.

Alcohol testing

Permitted

Must comply with U.S. DOT standards; positive equals .04 for safety-sensitive jobs, .08 for all other jobs.

EAP

See Comments

Employers must provide either an EAP or information about how to access EAP-type services.

Certified laboratory

Required

SAMHSA- or CAP-certified labs only.

WC premium discount

Permitted

When compliant with law qualifies for 5% discount.

WC claim denial or reduction

Permitted

Refer to ALA Code 25-5-51 (2006). Requires compliance with 49 CFR part 40 drug and alcohol testing regulations.

Unemployment denial

Permitted

Refer to ALA Code 25-4-78 (Supp. 2005). Requires compliance with 49 CFR part 40 drug and alcohol testing regulations or equivalent standards.

| 1 ALERE TOXICOLOGY: STATE LEGAL STATUS FOR WORKPLACE DRUG AND ALCOHOL TESTING

ALASKA

Legal status for workplace drug and alcohol testing

Alaska has a voluntary drug testing law. For companies that wish to qualify for limited legal protections they must comply with this law; other companies are not mandated to comply with this statute. THIS CHART REFLECTS THE REQUIREMENTS OF THE VOLUNTARY LAW.

ALASKA STATUTES 23.10.600 - 23.10.699

Area of focus

Setting/circumstance

Drugs tested (panel) Specimens permitted POCT screening devices Alcohol testing EAP Certified laboratory WC premium discount WC claim denial or reduction Unemployment denial

Status

Defined

Defined Defined Permitted Permitted Not Mentioned Required Not Mentioned Permitted Permitted

Comments Permitted in all circumstances. However, if testing is conducted, it must be done among all employees, including management. As well, pre-employment testing must be post-offer. Random testing is limited to safety-sensitive positions per case law. Post-accident is limited to those believed to have contributed to causing the accident. Drugs with SAMHSA-established cut-off levels at a minimum. See Alaska Statutes Title 11, Chapter 71 for a list of controlled substances included in the state's definition of "drugs." Notice of other drugs to be tested for and their cut-off levels must be given to donors in advance. Urine or breath only. FDA-cleared devices only; many conditions apply; positives must be confirmed with GC-MS; written record of result must be provided to individual. Permitted for employees; not permitted for applicants.

When not using on-site kits lab must be certified by SAMHSA, CAP, American Assn. of Clinical Chemists.

Refer to Alaska Statute ?23.30.235. Refer to Alaska Statutes ?23.20.379. Requires compliance with voluntary law.

2 | THE FOLLOWING INFORMATION IS NOT OFFERED AS LEGAL ADVICE, BUT IS INSTEAD FOR INFORMATIONAL PURPOSES.

ARIZONA

Legal status for workplace drug and alcohol testing

Arizona has a voluntary drug testing law. For companies that wish to qualify for limited legal protections they must comply with this law; other companies are not mandated to comply. THIS CHART REFLECTS THE REQUIREMENTS OF THE VOLUNTARY LAW.

ARIZ. REV. STAT. ANN. 23-493 TO -493.11 (1995 & SUPP. 2005)

(TITLE 23, CHAPTER 2, ARTICLE 14)

Area of focus Setting/circumstance

Drugs tested (panel) Specimens permitted POCT screening devices Alcohol testing EAP Certified laboratory WC premium discount WC claim denial or reduction Unemployment denial

Status Defined

Defined Defined See Comments Permitted Not Mentioned Required Not Mentioned Prohibited Permitted

Comments

Permitted in all circumstances. If testing is conducted, it must be done among all employees, including management. Post-accident testing is only permitted immediately after event and of those suspected of causing the accident.

Any substance considered unlawful under the schedules of the controlled substances section of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (P.L. 91-513; 84 Stat. 1247; 21 United States Code section 812) or the metabolite of the substance.

Urine, blood, hair, saliva, breath or other body specimens.

Even though the law expressly requires drug testing to be done in a laboratory, it contains a clause stating that nothing in the statute "shall be construed to encourage, discourage, restrict, limit, prohibit or require on-site drug testing or alcohol impairment testing." (23-493.04 E)

Permitted; .08 or above is positive by a "scientifically accepted method."

SAMHSA, CAP or Arizona Dept. of Health Services.

Arizona Revised Statutes Annotated ?23-1021 was ruled unconstitutional by the AZ Supreme Court in Grammatico v. The Industrial Commission.

Refer to Arizona Revised Statutes ?23-619.01; requires employer to conduct drug and alcohol testing in compliance with the guidelines of the voluntary law (Title 23, chapter 2, article 14).

| 3 ALERE TOXICOLOGY: STATE LEGAL STATUS FOR WORKPLACE DRUG AND ALCOHOL TESTING

ARKANSAS

Legal status for workplace drug and alcohol testing

Arkansas has a voluntary drug testing law. For companies that wish to qualify for a 5% discount on their workers' compensation premiums they must comply with this law; other companies are not mandated to comply with the statute. THIS CHART REFLECTS THE REQUIREMENTS OF THE VOLUNTARY LAW.

ARK. CODE ANN. 11-14-101 TO 11-14-112 (2002 & SUPP. 2003): ARK. REGS, RULE 36

Area of focus

Setting/circumstance

Drugs tested (panel) Specimens permitted POCT screening devices Alcohol testing EAP Certified laboratory WC premium discount WC claim denial or reduction Unemployment denial

Status

Defined

Defined Defined Prohibited Required Not Required Required Permitted Permitted Permitted

Comments

Permitted in all circumstances. The following is required: -Applicant testing for drugs is required; alcohol is optional. -Reasonable suspicion within 24 hours of report/observation of suspicious behavior. -Post-accident when injury results per DOT procedures: 8 h/alcohol and 32 h/drugs. -Periodic exam if part of routine medical exam per company policy or when such exams are required

of all workers in a particular class of job. -Follow-up when rehab is offered to policy violator; permitted but not required for workers who voluntarily

enter rehab; testing must occur at least once a year for a 2-year period.

SAMHSA panel.

Specimen means "tissue, fluid, or a product of the human body capable of revealing the presence of alcohol, drugs or their metabolites."

Specific requirements for alcohol testing are included in the statute.

Mentioned, but specifically not required. Must provide sampling of info on available EAPs in area.

Licensed by state and in compliance with SAMHSA, CAP, or other state-recognized certification.

5%.

Refer to Arkansas Code Annotated ? 11-9-102(4)(B)(iv).

Refer to Arkansas Code Annotated ? 11-10-514(b). Requires drug or alcohol test to be conducted in accordance with DOT regulations and the employer's written policy.

4 | THE FOLLOWING INFORMATION IS NOT OFFERED AS LEGAL ADVICE, BUT IS INSTEAD FOR INFORMATIONAL PURPOSES.

CALIFORNIA

Legal status for workplace drug and alcohol testing

Case law affects who can be tested and under what circumstances. Additionally, San Francisco has an ordinance that restricts drug testing in a number of ways. Employers should consider legal decisions related to drug testing prior to establishing a drug-free workplace program that includes any type of drug testing.

THIS STATE DOES NOT HAVE DRUG TESTING LEGISLATION.

SEE INTRODUCTION.

Area of focus

Setting/circumstance

Drugs tested (panel) Specimens permitted POCT screening devices Alcohol testing EAP Certified laboratory WC premium discount WC claim denial or reduction Unemployment denial

Status

See Comments

Not Mentioned Not Mentioned Restricted Restricted Not mentioned See Comments Not Mentioned Permitted Permitted

Comments Definition affected by case law and stringent privacy law. Applicant testing for safety-sensitive occupations is upheld by case law; probably permitted for others, but not in case law. Post-accident only if drug abuse is suspected and best limited to safety-sensitive workers. Periodic exam only if it is part of a pre-employment exam. Return-to-duty is also restricted to safety-sensitive positions. Random is not recommended, no matter what industry. All other circumstances are restricted.

Dept. of Health does not actively seek to restrict on-site tests or POCT. Cal. Business & Professions Code ?1206 requires all tests to take place at a certified laboratory. Same qualifications apply as for drug testing.

Strongly encouraged given the litigious environment in the state. Refer to Cal. Business & Professions Code ?1206 for requirement of who can conduct such a test.

Refer to California Labor Code ?3600. Refer to Unemployment Insurance Code ?1256.4.

| 5 ALERE TOXICOLOGY: STATE LEGAL STATUS FOR WORKPLACE DRUG AND ALCOHOL TESTING

CALIFORNIA, SAN FRANCISCO

Legal status for workplace drug and alcohol testing

San Francisco has a very restrictive drug testing law. Employers' rights are very limited when it comes to when drug testing can take place, and who may be drug tested. Employers are advised to refer to the city's law very carefully before implementing a drug testing program.

SAN FRANCISCO, CAL., POLICE CODE ART. 33A (1993)

Area of focus

Setting/circumstance

Drugs tested (panel) Specimens permitted POCT screening devices Alcohol testing EAP Certified laboratory WC premium discount WC claim denial or reduction Unemployment denial

Status

Defined

Not Mentioned Not Mentioned Restricted Permitted Not Mentioned See Comments Not Mentioned Permitted Permitted

Comments Testing is limited to substances that are likely to impact an individual's ability to perform their job safely. Applicant, return-to-duty, and alcohol testing are permitted. Reasonable suspicion is ok if there are reasonable grounds to believe the individual's faculties are impaired on the job and if there is a clear and present danger to the physical safety of the employee or others. Post-accident, periodic, and random are all prohibited. However, testing is limited to substances that are likely to impact an individual's ability to perform their job safely. The law only refers to urine and blood. Dept. of Health does not actively seek to restrict employers from conducting on-site tests or POCT. Refer to Cal. Business & Professions Code ?1206 for the law that requires all tests to take place at a certified laboratory.

Strongly encouraged given the litigious environment in the state. Refer to Cal. Business & Professions Code ?1206 for the requirement of who can conduct such a test.

Refer to California Labor Code ?3600. Refer to Unemployment Insurance Code ?1256.4.

6 | THE FOLLOWING INFORMATION IS NOT OFFERED AS LEGAL ADVICE, BUT IS INSTEAD FOR INFORMATIONAL PURPOSES.

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