ON-SITE DRUG TEST KITS WITH INSTANT RESULTS!
KITS ON-SITE, OVERNIGHT!
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ON-SITE DRUG TEST KITS WITH INSTANT RESULTS! KITS ON-SITE, OVERNIGHT! |
State Law Guide*
Private sector workplace drug testing (testing that is not mandated by federal regulation) is, however, subject to applicable state and local law. Since the 1980s, states have passed various laws regulating employer policies and/or the technical procedures. These state laws vary greatly in their intent and goals. Some are clearly designed to limit or inhibit the application of workplace drug testing, others to encourage testing. Most attempt to balance employee rights with employer interests.
This guide is designed to provide a quick reference on where and how on-site tests are regulated by state law. This guide is limited to the use of immunochemical drug screening devices in private employment drug testing programs. This guide is not designed to cover all aspects of the state law on employment drug testing, nor does it address the testing of state and/or local government employees.
A provider of point-of-collection (on-site) drug screening needs to be knowledgeable of any applicable state statute or regulation where on-site testing will be used. Normally, on-site testing involves situations where the employer, employee and testing facility are located in the same state. In some cases, however, more than one state law may be involved. This may require knowledge of laws in neighboring states.
In the case where a prospective donor is a resident of a state in which the law restricts the use of on-site tests, the provider should ask for clarification from the employer.
The following sections divide the state laws into five categories. In some cases these are deceiving. A state that appears to have a number of restrictions may in fact be more favorable to on-site testing than a state that does not appear to have many restrictions.
II. States That Do Not Restrict Workplace On-Site Screening
Twenty-one States do not have any restrictions or limitations on the use of on-site testing devices. An additional eight states require that if an on-site device is used, a presumptive positive result must be confirmed by a laboratory.
These states do not have any specific restrictions or conditions on the use of on-site testing devices:
Arkansas
CaIifornia*
Colorado
Delaware
District of Columbia
Indiana
Kentucky*
Michigan
Missouri
New Hampshire
New Jersey
New Mexico
North Dakota
Ohio
Pennsylvania
South Carolina
South Dakota
Texas
Virginia
West Virginia
Wisconsin
Wyoming
*See section VI.
III. States with Drug-Free Workplace Acts
Drug-Free Workplace Acts have been enacted in a number of states. A unique feature of these acts is that compliance with them is voluntary. Employers are given a number of inducements to voluntarily comply, such as workers' compensation premium discounts. These drug-free workplace acts typically require the use of a laboratory and have detailed technical procedures calling for the screening and confirmation of tests in state or federally approved laboratories. It is unclear whether an employer will lose some or all of the benefits of compliance with the voluntary drug-free workplace law if an on-site screen is added to the process.
The best recommendation to a provider of rapid immunoassay screening service is to inform the employer that a trade-off for rapid results may be losing some or all of the benefits of the state drug-free workplace act. Many of these states are studying the issue and there may be some amendments in the future. This is somewhat of an uncharted area, and employers who wish to integrate the limited use of rapid immunoassay screening such as the pre-screening procedure described here should get an independent legal opinion.
Alabama
Arizona
Florida
Georgia*
Mississippi
Tennessee*
Washington
*See section VI.
IV. States which Require Confirmation of On-Site Results
The following states allow on-site testing on the condition that presumptive positive results must be confirmed by a laboratory.
Alaska
Connecticut*
Idaho
Nebraska
North Carolina
Rhode Island
Utah
* See section VI.
The relevant section of each specific state law is provided below:
Alaska
ALASKA STATUTES
TITLE 23. LABOR AND WORKERS' COMPENSATION.
CHAPTER 10. EMPLOYMENT PRACTICES AND WORKING CONDITIONS.
ARTICLE 9. DRUG AND ALCOHOL TESTING BY EMPLOYERS
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.
Connecticut
Connecticut General Statutes
Title 31. Labor
Chapter 557. Employment Regulation
Part II. Protection of Employees
31-51u. Drug testing: Requirements
(a) No employer may determine if employee's eligibility for promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action solely on the basis of a positive urinalysis drug test result unless
(1) the employer has given the employee a urinalysis drug test, utilizing a reliable methodology, which produced a positive result and
(2) such positive test result was confirmed by a second urinalysis drug test, which was separate and independent from the initial test, utilizing a gas chromatography and mass spectrometry methodology or a methodology which has been determined by the Commissioner of Public Health to be as reliable or more reliable than the gas choromatography and mass spectrometry methodology.
(b) No person performing a urinalysis drug test pursuant to subsection (a) of this section shall report, transmit or disclose any positive test result of any test performed in accordance with subdivision (1) of subsection (a) of this section unless such test result has been confirmed in accordance with subdivision (2) of said subsection (a).
Idaho
Idaho Code
Title 72. Worker's Compensation And Related Laws--Industrial Commission
Part III
Chapter 17. Idaho Private Employer Alcohol And Drug-Free Workplace Act
72-1701 Purpose and intent of act.
The purpose of this act is to promote alcohol and drug-free workplaces and otherwise support private employers in their efforts to eliminate substance abuse in the workplace, and thereby enhance workplace safety and increase productivity. This act establishes voluntary drug and alcohol testing guidelines for private employers that, when complied with, will find an employee who tests positive for drugs or alcohol at fault, and will constitute misconduct under the employment security law as provided in section 72-1366(e), Idaho Code, thus resulting in the denial of unemployment benefits.
72.1704 Requirements for sample collection and testing.
All sample collection and testing for drugs and alcohol under this act shall be performed in accordance with the following conditions:
(1) The collection of samples shall be performed under reasonable and sanitary conditions;
(2) The private employer or private employer's agent who is responsible for collecting the sample will be instructed as to the proper methods of collection;
(3) Samples shall be collected and tested with due regard to the privacy of the individual being tested and in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples;
(4) Sample collection shall be documented and the documentation procedures shall include:
(a) Labeling of samples so as reasonably to preclude the possibility of misidentification of the person tested in relation to the test result provided; and
(b) Handling of samples in accordance with reasonable chain-of custody and confidentiality procedures;
(5) Sample collection, storage and transportation to the place of testing shall be performed so as reasonably to preclude the possibility of sample contamination and/or adulteration;
(6) Sample testing shall conform to scientifically accepted analytical methods and procedures;
(7) Drug testing shall include a confirmatory test before the result of any test can be used as a basis for action by a private employer under sections 72-1707 and 72-1708, Idaho Code. A confirmatory test refers to the mandatory second or additional test of the same sample that is conducted by a laboratory utilizing a chromatographic technique such as gas chromatography mass spectrometry or another comparable reliable analytical method;
(8) Positive alcohol tests resulting from the use of an initial screen saliva test, must include a confirmatory test that utilizes a different testing methodology meant to demonstrate a higher degree of reliability;
(9) Positive alcohol tests resulting from the use of a breath test must include a confirmatory breath test conducted no earlier than fifteen (15) minutes after the initial test; or the use of any other confirmatory test meant to demonstrate a higher degree of reliability.
72-1706 Right of employee or prospective employee to explain positive test result and request for retest.
(1) Any employee or prospective employee who tests positive for drugs or alcohol must be given written notice of that test result, including the type of substance involved, by the private employer. The employee must be given an opportunity to discuss and explain the positive test result with a medical review officer or other qualified person.
(2) Any employee or prospective employee who has a positive test result may request that the same sample be retested by a mutually agreed upon laboratory. A request for retest must be done within seven (7) working days from the date of the first confirmed positive test notification and may be paid for by the employee or prospective employee requesting the test. If the retest results in a negative test outcome, the private employer will reimburse the cost of the retest, compensate the employee for his time if suspended without pay, or if terminated solely because of the positive test, the employee shall be reinstated with back pay.
Nebraska
REVISED STATUTES OF NEBRASKA
CHAPTER 48. LABOR
ARTICLE 19. DRUG AND ALCOHOL TESTING
48-1903. Test results; use; requirements
Any results of any test performed on the body fluid or breath specimen of an employee, as directed by the employer, to determine the presence of drugs or alcohol shall not be sued to deny any continued employment or in any disciplinary or administrative action unless the following requirements are met:
(1) A positive finding of drugs by preliminary screening procedures has been subsequently confirmed by gas chromatography-mass spectrometry or other scientific testing technique which has been or may be approved by the department; and
(2) A positive finding of alcohol by preliminary screening procedures is subsequently confirmed by either:
(a) Gas chromatography with a flame ionization detector or other scientific testing technique which has been or may be approved by the department; or
(b) A breath-testing device operated by a breath-testing-device operator. Nothing in this subdivision shall be construed to preclude an employee from immediately requesting further confirmation of any breath-testing results by a blood sample if the employee voluntarily submits to give a blood sample taken by qualified medical personnel in accordance with the rules and regulations adopted and promulgated by the department. If the confirmatory blood test results do not confirm a violation of the employer's work rules, any disciplinary or administrative action shall be rescinded.
Except for a confirmatory breath test as provided in subdivision (2)(b) of this section, all confirmatory tests shall be performed by a clinic, hospital, or laboratory which is licensed pursuant of the federal Clinical Laboratories Improvement Act of 1967 42 U.S.C. 263a, or which is accredited by the College of American Pathologists.
48-1904. Specimens; preservation
Except for breath test specimens as provided in subdivision (2)(b) of section 48-1903, all specimens which result in a finding of drugs or alcohol shall be refrigerated and preserved in a sufficient quantity for retesting for a period of at least one hundred eighty days.
North Carolina
GENERAL STATUTES OF NORTH CAROLINA
CHAPTER 95. DEPARTMENT OF LABOR AND LABOR REGULATIONS
ARTICLE 20. CONTROLLED SUBSTANCE EXAMINATION REGULATION
95-231. Definitions
As used in this Article, unless the context clearly requires otherwise:
(1) "Approved laboratory" means a clinical chemistry laboratory which performs controlled substances testing and which has demonstrated satisfactory performance in the forensic urine drug testing programs of the United States Department of Health and Human Services or the College of American Pathologists for the type of tests and controlled substances being evaluated.
(1a) "Controlled substance" is as defined in G.S. 90-87(5) or a metabolite thereof.
(1b) "Controlled substance examination" means all actions related to drug testing for the purpose of determining if an examinee has used controlled substances.
(2) "Examiner" means a person, firm, or corporation, doing business in the State, including State, county, and municipal employers, who is the employer or prospective employer of the examinee and who performs or has performed by an approved laboratory a controlled substance examination.
(3) "Examinee" means an individual who is and employee of the examiner or an applicant for employment with the examiner and who is requested or required by an examiner to submit to a controlled substance examination.
(4) "Screening" means initial controlled substance examination performed for the purpose of determining use of controlled substances by an examinee.
95-232. Procedural requirements for the administration of controlled substance examinations
(a) An examiner who requests or requires an examinee to submit to a controlled substance examination shall comply with the procedural requirements set forth in this section.
(b) Collection of samples: the collection of samples for examination or screening shall be performed under reasonable and sanitary conditions. Individual dignity shall be preserved to the extent practicable. Samples shall be collected in a manner reasonably calculated to prevent substitution of samples and interference with the collection, examination, or screening of samples.
(c) Approved laboratories: the examiner shall have the option of:
(1) Performing the screening test on-site for prospective employees, provided that samples which demonstrate a positive drug test result are sent to an approved laboratory for confirmation, or
(2) Having an approved laboratory perform both the screening and confirmation tests as provided in this section.
(c1) Confirmation of samples: an approved laboratory shall confirm any sample that produces a positive result by a second examination of the sample utilizing gas chromatography with mass spectrometry or an equivalent scientifically accepted method.
(d) Retention of samples: a portion or every sample fluid that confirms positive examination result shall be preserved by the labortatory that conducts the confirmatory examination for a period of at least 90 days from the time of the results of the confirmed positive examination are mailed or otherwise delivered to the examiner.
(e) Chain of custody: the examiner or his agent shall establish procedures regarding chain of custody for sample collection and examination to ensure proper record keeping, handling ,labeling and identification of examination samples.
(f) Retesting of positive samples: the examinee shall have the right to retest a confirmed positive sample at the same or another approved laboratory. The examiner, through the approved laboratory.shall make confirmed samples available to the affected examinee, or designated agent, during the time which the sample is required to be retained. the examinee must request release of the sample in writing specifying to which approved laboratory the sample is to be sent. The examinee incurs all reasonable expenses for chain of custody procedures, shipping, and retesting of positive samples related to this request.
Rhode Island
GENERAL LAWS OF RHODE ISLAND TITLE 28. LABOR AND LABOR RELATIONS CHAPTER 6.5. URINE AND BLOOD TESTS AS A CONDITION OF EMPLOYMENT
28-6.5-1. Testing permitted only in accordance with this section
(a) No employer or agent of any employer shall, either shall, either orally or in writing, request, require, or subject any employee to submit a sample of his or her urine,blood, or other bodily fluid or tissue for testing as a condition of continued employment unless such test shall be administered in accordance with the provisions of this section. Employers may require that an employee submit to a drug test if:
(1) The employer has reasonable grounds to believe based on specific aspects of the employee's job performance and specific contemporaneous observations, capable of being articulated, concerning the employee's appearance, behavior, or speech that the employee's use of controlled substances is impairing his or her ability to preform his or her job; and
(2) The employee provides the test sample in private, outside the presence of any person; and
(3) Employees testing positive are not terminated on that basis, but instead refereed to a substance professional( a licensed physician with knowledge and clinical experience in the diagnosis and treatment of drug related disorders, a licensed or certified psychologist, social worker, or EAP Professional with like knowledge, or a substance abuse professional certified by the National Association of alcohol and drug abuse counselors (all of whom shall be licensed in Rhode Island) for assistance; and
(4) Positive tests are confirmed by means of gas chromatography/mass spectrometry or technology recognized as being at least as scientifically accurate; and
(5) The employer provides the employee, at the employers expense, the opportunity to have the sample tested or evaluated by an independent testing facility and so advises the employee; and
(6) The employer provides the employee with a reasonable opportunity to rebutter explain the results and
(7) The employer has promulgated a drug abuses prevention policy which complies with requirements of this chapter.
(8) The employer keeps the results of any test confidential, except for disclosing the results of a "positive" test only to other employees with a job related need to know, and to defend against any legal action brought by the employee against the employer.
(b) Any employer who subjects any person employed by him or her to such a test or causes directly or indirectly, any employee to take such a test, except as provided for by this chapter, shall be guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000.00) or not more than one year in jail, or both.
(c) In any civil action alleging a violation of this section, the court may:
(1) Award punitive damages to a prevailing employee in addition to any way of actual damages;
(2) Award reasonable attorney' fees and costs to prevailing employee; and
(3) Afford injunctive relief against any employer who commits or proposes to commit violation of this section
(d) Nothing in this chapter shall be construed to impair or affect the rights of individuals under chapter 5 of this title.
(e) Nothing in this chapter shall be construed to prohibit the testing of drivers regulated under 49 C.F.R. 40 .1 et seq. and 49 C.F.R. 391.81 if such testing is mandated by federal government, nor to prohibit an employer in the public utility or mass transportation industry from requiring testing otherwise barred by this chapter if such testing explicitly mandated by federal regulation or statute as a condition for the continued receipt of federal funds; provided, however, that the testing authorized herein shall comply with any and all other provisions of this chapter that are not clearly inconsistent with the applicable federal regulations or statutes.
28-6.5-2. Urine and blood testing of prospective employees
(a) Except as provided in subsections (b) and (c), an employer may require a job applicant to submit to blood or urine testing if:
(1) The job applicant has been given an offer of employment conditioned on the applicants' receiving a negative test result;
(2) The applicant provides the test sample in private outside presence of any person; and
(3) Positive tests are confirmed by means of gas chromatography/ mass spectrometry or technology recognized at least as being scientifically accurate.
(b) The pre-employment drug testing authorized by this section shall not extend to job applicants for positions with any agency or political subdivision of the state municipalities,except for applicants seeking employment as a law enforcement or correctional officer, firefighter, or any other position where such testing is required by federal law or required for the continued receipt of federal funds.
(c) An employer shall not be required to comply with the conditions of testing under subsection (a) to the extent they are inconsistent with federal law.
Utah
UTAH CODE ANNOTATED
TITLE 34. LABOR IN GENERAL
CHAPTER 38. DRUG AND ALCOHOL TESTING
34-38-6. Requirements for collection and testing
All sample collection and testing for drugs and alcohol under this chapter shall be performed in accordance with the following conditions:
(1) the collection of samples shall be performed under reasonable and sanitary conditions;
(2) samples shall be collected and tested with due regard to the privacy of the individual being tested, and in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples;
(3) sample collection shall be documented, and the documentation procedures shall include:
(a) labeling of samples so as reasonably to preclude the probability of erroneous identification of test results; and
(b) an opportunity for the employee or prospective employee to provide notification of any information which he considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant medical information.
(4) Sample collection, storage, and transportation to the place of testing shall be performed so as reasonably to preclude the probability of sample contamination or adulteration; and
(5) sample testing shall conform to scientifically accepted analytical methods and procedure. Testing shall include verification or confirmation of any positive test result by gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical method, before the result of any test may be used as a basis for any action by an employer under Section 34-38-8.
V. States which Restrict Workplace Drug Testing to "Approved" Laboratories
The following states have statutes which require the use of an approved laboratory. What constitutes an approved laboratory varies from state to state, and actual practices may not be evident from the statutory language. A doctor's office or hospital emergency room may qualify as an approved laboratory for on-site drug testing.
Hawaii
Iowa
Kansas
Louisiana
Maine
Maryland
Minnesota
Nevada
Oregon
Oklahoma
Vermont
The relevant part of these state statues are provided below:
Hawaii
HAWAII
DIVISION 1. GOVERNMENT
TITLE 19. HEALTH
CHAPTER 329B. SUBSTANCE ABUSE TESTING
329B-4. Laboratory requirements
(a) All substance abuse testing performed in the State shall be performed by a testing laboratory licensed by the department for that purpose, or certified for substance abuse testing by the Substance Abuse and Mental Health Services Administration of the United States Department of Health and Human Services, and approved by the director.
Iowa
CODE OF IOWA 1995
TITLE XVI. CRIMINAL LAW AND PROCEDURE
SUBTITLE 1. CRIME CONTROL AND CRIMINAL ACTS
CHAPTER 730. EMPLOYER-EMPLOYEE OFFENSES
3. This section does not prohibit an employer from requiring a specific employee to submit to a drug test if all of the following conditions are met:
a. The employer has probable cause to believe that an employee's faculties are impaired on the job.
b. The employee is in a position where such impairment presents a danger to the safety of the employee, another employee, a member of the public, or the property of the employer, or when impairment due to the effects of a controlled substance is a violation of a known rule of an employer.
c. The test sample withdrawn from the employee is analyzed by a laboratory or testing facility that has been approved under rules adopted by the department of public health.
Kansas
KANSAS
CHAPTER 65. PUBLIC HEALTH
ARTICLE 1. SECRETARY OF HEALTH AND ENVIRONMENT, ACTIVITIES
LABORATORY TESTING
65-1,108. Unlawful to perform certain tests unless performed in approved laboratory; penalty for violation; exclusions.
(a) It shall be unlawful for any person or laboratory to perform tests to evaluate biological specimens for the presence of controlled substances included in schedule I or II of the uniform controlled substances act or metabolites thereof, unless the laboratory in which such tests are performed has been approved by the secretary of health and environment to perform such tests. Any person violating any of the provisions of this section shall be deemed guilty of a class B misdemeanor.
(b) As used in this section and in K.S.A. 65-1,107 and amendments thereto, "laboratory" shall not include:
(1) The office or clinic of a person licensed to practice medicine and surgery in which laboratory tests are performed as part of and incidental to the examination or treatment of a patient of such person;
Louisiana
LOUISIANA REVISED STATUTES
TITLE 23. LABOR AND WORKERS' COMPENSATION
CHAPTER 9. MISCELLANEOUS PROVISIONS
PART 1. GENERAL PROVISIONS
PART II. DRUG TESTING PROCEDURES AND STANDARDS
1008. Initial testing; screening laboratories; guidelines
A. (1) Screening laboratories performing only the initial testing shall be inspected and approved by the bureau of health services financing, health standards section of the Department of Health and Hospitals. In no event shall such inspection be conducted more than once each year. Upon approval, the Department of Health and Hospitals shall issue a certificate to the screening laboratory. As a condition for approval, screening laboratories shall successfully participate in a proficiency testing program for any screened drugs listed in R.S. 49:1002(A), and shall maintain records to assure ongoing quality assurance, quality control, and equipment maintenance. The department shall refuse or revoke the certification of any screening laboratory which is not in compliance with the provisions of this Chapter.
(2) The department shall be authorized to impose an inspection fee, not to exceed two hundred fifty dollars per inspection, to provide for the administrative costs of inspection, approval, and certification, However, the fee shall be charged for only one inspection during any year.
Maine
MAINE
TITLE 26. LABOR AND INDUSTRY
CHAPTER 7. EMPLOYMENT PRACTICES
SUBCHAPTER III-A. SUBSTANCE ABUSE TESTING
26 M.R.S. Section 683 (1996)
683. Testing procedures
6. QUALIFIED TESTING LABORATORIES REQUIRED. No employer may perform any substance abuse test administered to any of that employer's employees. An employer may perform screening tests administered to applicants if the employer's testing facilities comply with the requirements for testing Laboratories under this subsection. Any substance abuse test administered under this subchapter must be performed in a qualified testing laboratory that complies with this subsection.
Maryland
MARYLAND
HEALTH-GENERAL
TITLE 17. LABORATORIES
SUBTITLE 2. MEDICAL LABORATORIES
Md. HEALTH-GENERAL Code Ann. 17-214 (1997)
(1) An employer who requires any person to be tested for job-related reasons for the use or abuse of any controlled dangerous substance or alcohol shall:
(i) Have the specimen tested by a laboratory that:
1. Holds a permit under this subtitle;.
Minnesota
MINNESOTA STATUTES
LABOR, INDUSTRY
CHAPTER 181. EMPLOYMENT; WAGES, CONDITIONS, HOURS, RESTRICTIONS DRUG AND ALCOHOL TESTING IN THE WORKPLACE
181.951. Authorized drug and alcohol testing
Subdivision 1. Limitations on testing.
(a) An employer may not request an employee or job applicant to undergo drug and alcohol testing except as authorized in this section
(b) An employer may not request or require an employee or job applicant to undergo drug or alcohol testing unless the testing is done pursuant to a written drug and alcohol testing policy that contains the minimum information required in section 181.952; and, is conducted by a testing laboratory which participates in one of the programs listed in section 181.953, subdivision 1.
181.953 Reliability and fairness safeguards
Subdivision 1. Use of licensed, accredited, or certified laboratory required. (a) An employer who requests or requires an employee or job applicant to undergo drug or alcohol testing shall use the services of a testing laboratory that meets one of the following criteria for drug testing:
(1) is certified by the National Institute on Drug Abuse as meeting the mandatory guidelines published at 54 Federal Register 11970 to 11989, April 11, 1998;
(2) is accredited by the College of American Pathologists, 325 Waukegan Road, Northfield, Illinois, 60093-2750, under the forensic urine testing laboratory program; or
(3) is licensed to test for drugs by the state of New York, department of health, under Public Health law article 5, title V, and rules adopted under that law.
Nevada
NOTE: the Nevada law applies to the testing of state employees. Officials have stated that a state permit is required for private on-site testing.
NEVADA REVISED STATUTES
TITLE 23. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 284. STATE PERSONNEL SYSTEM
USE OF ALCOHOL OR DRUGS BY EMPLOYEES
284.4967. Screening tests: Requirements for administration; use; results
1. A screening test:
(a) To detect the general presence of a controlled substance or any other drug, must be conducted by an independent laboratory that is certified by the Department of Health and Human Services.
(b) To detect the general presence of alcohol or of a controlled substance or any other drug, must be administered in such a manner as to protect the person tested from any unnecessary embarrassment.
2. Except as otherwise provided in subsection 3, a sample of urine provided for use in a screening test must not be used for any other purpose without the prior written consent of the person providing the sample. The appointing authority shall ensure that the person retains possession and control of his sample until it is appropriately tagged and sealed with tamper-proof tape.
3. If the results of a screening test indicate the presence of any drug which could impair the ability of a person to perform the duties of employment safely and efficiently:
(a) The laboratory shall conduct another test of the same sample of urine to ascertain the specific substances and concentration of those substances in the sample; and
(b) The appointing authority shall provide the person tested with an opportunity to have the same sample tested at his expense by a laboratory of his choice certified by the Department of Health and Human Services.
Oklahoma
OKLAHOMA STATUTES
TITLE 40. LABOR
CHAPTER 15. STANDARDS FOR WORKPLACE DRUG AND ALCOHOL TESTING ACT
557. Testing standards and procedures--Implementation and enforcement--Rules
A. The State Board of Health shall implement and enforce the provisions of the Standards for Workplace Drug and Alcohol Testing Act. The Board shall have the power and duty to promulgate, prescribe, amend and repeal rules for the licensure and regulation of testing facilities and for the establishment and regulation of minimum testing standards and procedures, which shall include, but not be limited to, the following:
1. Qualifications of testing facilities which shall include the requirement that facilities doing urine analysis for initial or confirmation tests either be certified for forensic urine drug testing pursuant to guidelines or regulations of the federal Department of Health and Human Services or be accredited for forensic urine drug testing by the College of American Pathologists or other organizations recognized by the State Board of Health;.
Oregon
NOTE: Although Oregon allows initial screening to be done separate from confirmation, this is still considered a special class of clinical laboratory.
OREGON REVISED STATUTES
TITLE 36. PUBLIC HEALTH AND SAFETY
CHAPTER 438. CLINICAL LABORATORIES
MISCELLANEOUS
ORS 438.435 (1996)
438.435. Testing for substance abuse; source of specimens; when confirming test required; standards; standards for screening certain criminal offenders; effect of use of out-of-state tests.
(1) In addition to duties which a clinical laboratory may perform under this chapter, a laboratory is authorized to perform appropriate tests, examinations or analyses on materials derived from the human body for the purpose of detecting substances of abuse in the body. All laboratories performing the tests, examinations or analyses must be licensed under the provisions of this chapter and must employ qualified technical personnel to perform the tests, examinations and analyses.
(2) In order to perform such tests, examinations or analyses, the laboratory may examine specimens submitted by persons other than those described in ORS 438.430 (1) and shall report the result of any test, examination or analyses to the person who submitted the specimen.
(3) When the specimen of a person tested for substances of abuse is submitted to the laboratory and the test result is positive, the laboratory shall perform a confirming test which has been designated by rule of the Health Division as the best available technology for use to determine whether or not the substance of abuse identified by the first test is present in the specimen prior to reporting the test results.
(4) The Health Division by rule shall set standards for special category laboratories that engage only in the initial testing for substances of abuse in the body, including registration procedures for such laboratories and personnel.
(5) The Health Division rule shall set reasonable standards for the screening by correctional agencies of inmates within state and local correctional facilities and offenders on parole, probation, or post-prison supervision for substances of abuse. The standards shall include, but not be limited to, the establishment of written procedures and protocols, the qualifications and training of individuals who perform screening tests, the approval of specific technologies and the minimum requirements for record keeping, quality control and confirmation of positive screening results.
(6) If an initial test by a special category laboratory under subsection (4) of this section or a special category screening under subsection (5) of this section shows a result indicating the presence of a substance of abuse in the body, a confirmatory test shall be conducted in a licensed clinical laboratory if the results are to be used to deprive or deny any person of any employment or benefit. If a screening test of an inmate of a state or local correctional facility is positive, the inmate may be held in a secure facility pending the outcome of any hearing to determine what action will be taken.
(7) If any test for substances of abuse is performed outside this state the results of which are to be used to deprive or deny any person any employment or any benefit, the person desiring to use the test shall have the burden to show that the testing procedure used meets or exceeds the testing standards of this state.
Vermont
VERMONT STATUTES
TITLE TWENTY-ONE. LABOR
CHAPTER 5. EMPLOYMENT PRACTICES
SUBCHAPTER 11. DRUG TESTING
21 V.S.A. 511 (1997)
511. Definitions
As used in this subchapter:
(1) "Applicant for employment" means an individual seeking or being sought for employment with an employer.
(2) "Designated laboratory" means a laboratory designated by the department of health under section 518 of this title.
(3) "Drug" means a drug listed or classified by the U.S. Drug Enforcement Administration as a Schedule I drug, or its metabolites, and alcohol. It shall also mean other drugs or their metabolites which are likely to cause impairment of the individual on the job, which are: amitriptyline, amphetamines, barbiturates, bensodiazepines, cannabinoids, cocaine, doxepin, glutethimide, hydromorphone, imipramine, meperidine, methadone, methaqualone, opiates, oxycodone, pentazocine, phenytoin, phencyclidine, phenothiazines, and propoxyphene. In addition, the commissioner of health may, pursuant to chapter 25 of title 3, add drugs to this list not recognized as being commonly abused and likely to cause impairment of the employee on the job at the time of the passage of this act.
(4) "Drug test" means the procedure of taking and analyzing body fluids or materials from the body for the purpose of detecting the presence of a regulated drug as defined in chapter 84 of title 18 or a drug as defined in subdivision (3) of this section.
(5) "Employee" means any person who may be permitted, required or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.
(6) "Employer" means any individual, or organization, or governmental body including partnership, association, trustee, estate, corporation, joint stock company, insurance company or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air, or express company doing business in or operating within this state, which has one or more individuals performing services for it within this state, or which has offered or may offer employment to one or more individuals.
(7) "Employment agency" means a person who undertakes, with or without compensation, to procure, refer, recruit or place for an employer or person, the opportunity to work for an employer
514. Administration of tests
An employer who administers a drug test shall comply with all the following requirements:
(1) Drugs to be tested-- The test shall be administered only to detect the presence of alcohol or drugs, as defined in subdivision 511(3) of this title at nontherepeutic levels.
(2) Written policy--The employer shall provide all persons tested with a written policy that identifies the circumstances under which persons may be required to submit to drug tests, the particular test procedures, the drugs that will be screened, a statement that over-the-counter medications and other substances may result in a positive test result. The employer's policy shall incorporate all provisions of this section.
(3) Blood samples-- An employer may not request or require that a blood sample be drawn for the purpose of administering a drug test.
(4) Designated laboratory-- The employer shall use only a laboratory designated by the department of health.
VI. States Where Clinical Laboratory Law May Apply
Although it is clear that forensic drug testing, which includes workplace drug testing, is exempt from coverage under the federal Clinical Laboratory Act, a number of states have clinical laws that can be interrupted by state officials to apply to all drug testing. The states where there is statutory language to support that interpretation are:
Connecticut
Massachusetts
Illinois
New York
There is a subset of states where, although there is no statutory basis, a state official has interpreted the state law to cover workplace drug and alcohol testing. These interpretations have not been challenged.
California
Kentucky
Tennessee
Georgia
*DISCLAIMER:
This information is for evaluation purposes and to inform only. This information is NOT to be construed as legal advice from Test Express, Inc. Please have an attorney review this information prior to any use.
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