A Quick Guide For Employers - The Workforce Drug & Alcohol Testing Act

Recognizing the adverse impact of substance abuse in the workplace, the 1997 Montana Legislature enacted the “Workforce Drug and Alcohol Testing Act,” (39-2-205 through 211, MCA). This Act gives employers the right, under certain circumstances, to require their employees to submit to a drug or alcohol test. Some of the goals of the Act are to:

·        educate employers about the legal health and workplace safety risks attributable to the use of drugs and alcohol;

·        insure employees are not impaired in their ability to perform assigned duties in a safe, productive and healthy manner;

·        prohibit the unlawful use of drugs at the workplace or of being under the influence of illegal drugs during work hours;

·        prohibit the possession or use of alcohol at the workplace or during work hours; and to encourage employees to seek professional assistance at any time personal problems, including alcohol or drug dependency, adversely affect their ability to perform their assigned duties.

The purpose of a drug testing policy is to insure the employee is fit to work; and to protect other employees and the public from the risk of injury from an impaired employee.

The remainder of this article gives you a brief overview of requirements and responsibilities to keep in mind when developing and implementing a drug and alcohol testing policy.

WHO CAN BE TESTED

Employers may only test employees:

·        in a security position;

·        in a position affecting public safety;

·        in a fiduciary position for you as the employer; or

·        engaged in performing, supervising or managing work in a hazardous work environment

(The Act defines a hazardous work environment as positions for which drug and alcohol testing is mandated by federal law - including, for example: aviation, commercial motor carrier, railroad, pipeline, commercial marine employees. It also includes positions that operate or work in proximity to construction equipment, industrial machinery or mining activities or that handle, or work in proximity to, flammable materials, explosives, toxic chemicals or similar substances. This definition is not exclusive, however, so additional non-listed occupations may also apply.)

Employers may not test independent contractors.

TYPES OF TESTING PERMITTED

The Act permits:

·        Pre-employment testing;

·        Random testing;

·        Reasonable suspicion testing;

·        Post-accident testing; and

·        Follow-up testing

Pre-employment testing - allows the employer to require a potential employee to pass a drug and/or alcohol test as a condition of employment. .

Random testing - allows an employer to randomly test their employees by testing all salaried and wage-earning employees on a specified date or by testing randomly selected employees periodically within a calendar year. An employer may use either method, but if using the random selection method they must use a scientifically valid process, so that all employees, including supervisory or managerial employees, have an equal chance of being selected.

Reasonable suspicion - is allowed if the employer has reason to suspect an employee is impaired on the job because of drug or alcohol use. An employer or supervisor, trained in accordance with federal regulations to detect the signs and symptoms of drug and alcohol use, should make this determination. Alcohol testing should be done within a short time period, within. two hours of the observation, whenever possible.

Post-accident testing - is allowed if the employer believes the employee’s act or failure to act caused a work-related accident that caused a death, a personal injury, or property damage in excess of $1,500.

Follow-up testing - may be permitted for up to one year following a verified positive test in accordance with the employer’s drug and alcohol abuse policy.

Employers must use a qualified testing program that is fully explained to the employees in writing and, if using a random selection method, must get forms from all employees acknowledging receipt of a written description of the testing process. The employer’s policy should state the consequences employees might face if they do not consent to testing. The collection, transportation and confirmation of the samples must be performed in accordance with federal regulations.

PAYING FOR THE TEST

The employer must pay for the testing and must pay the employee at their regular rate, including benefits, for the time spent in the testing program. The employer must give the employee a copy of the test. If the results are positive for the presence of drugs or alcohol the employee may request an additional test of the urine split sample by an independent laboratory selected by the employee. If the results of the second test are negative, the employer must pay for the second test. If the results are positive, the employee must pay for the second test.

EMPLOYER RESPONSIBILITIES

Before an employer may test employees for drugs or alcohol they must:

·        have a written policy

·        have the policy available for review by all employees for sixty days prior to implementing the policy. (The policy must comply with the U.S. Department of Transportation Drug Testing Regulations).

In addition:

·        A medical review officer trained in this area must certify all positive tests.

·        The employee must be given the opportunity to provide pertinent medical information to the review officer that would help in interpreting test results. This may include information on currently or recently used prescription or over-the-counter drugs.

·        A certified breath alcohol technician must administer breath alcohol tests and they must use testing equipment shown on the federal government’s conforming products list. The employee must have an alcohol concentration of greater than .04 before they are considered to have alcohol in their body.

·        The employee must be given the opportunity to rebut or explain any positive test results. If the employee has a reasonable explanation or medical opinion indicating the results of the original test were not caused by illegal use of drugs or by alcohol consumption, the test results must be removed from the employee’s record and destroyed.

EMPLOYER RIGHTS

·        An employer may require an employee testing positive to participate in appropriate counseling, treatment or rehabilitation as a condition of continued employment.

·        An employer may also require the employee to submit to periodic follow-up testing as a condition of the program.

CONFIDENTIALITY

With a few exceptions, the testing results and all other documents obtained by the employer must be kept confidential. They may not be used as evidence or disclosed in any public or private proceeding unrelated to the drug testing policy, except for the information required by law to be reported to a state or federal licensing authority. However, this confidential information may be used in a legal action arising out of an employer’s implementation of the Act, and with respect to inquiries relating to a workplace accident involving a death or physical injury or property damage in excess of $1,500 when there is reason to believe the employee may have caused or contributed to the accident.

YOUR POLICY

Your policy must describe the applicable legal sanctions under federal, state and local law for the unlawful manufacture, distribution, possession or use of a controlled substance.

Your policy must also state:

·        your program for regularly educating or providing information to employees on the health and workplace safety risks associated with the use of drugs and alcohol,

·        your standards of conduct that regulate the use of drugs and alcohol by employees,

·        a description of available employee assistance programs,

·        a description of the sanctions you may impose,

·        the types of drug and alcohol tests to be used,

·        a list of drugs for which you intend to test,

·        a stated alcohol concentration level above which an employee will be sanctioned,

·        a description of your hiring policy with respect to prospective employees who test positive,

·        a detailed description of the procedures that will be followed to conduct the testing program, including how disputes concerning test results will be resolved,