Drug free workplace act

Typical drug testing, drug free workplace statute

WORKER’S COMPENSATION AND RELATED LAWS – INDUSTRIAL COMMISSION

CHAPTER 17

IDAHO PRIVATE EMPLOYER ALCOHOL AND DRUG-FREE WORKPLACE ACT

72-1701. PURPOSE AND INTENT OF ACT.

(1) 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, Idaho Code, thus resulting in the denial of unemployment benefits.

(2) It is the further purpose of this act to promote alcohol and 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.

72-1702. TESTING FOR DRUGS AND/OR ALCOHOL.

(1) It is lawful for a private employer to test employees or prospective employees for the presence of drugs or alcohol as a condition of hiring or continued employment, provided the testing requirements and procedures are in compliance with 42 U.S.C. 12101.

(2) Nothing herein prohibits a private employer from using the results of a drug or alcohol test conducted by a third party including, but not limited to, law enforcement agencies, hospitals, etc., as the basis for determining whether an employee has committed misconduct.

(3) This act does not change the at-will status of any employee.

72-1703. COST OF TESTING OF CURRENT EMPLOYEES.

(1) Any drug or alcohol testing by a private employer of current employees shall be deemed work time for purposes of compensation.

(2) All costs of drug and alcohol testing for current employees conducted under the provisions of this act, unless otherwise specified in section 72-1706(2), Idaho Code, shall be paid by the private employer.

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.

72-1705. PRIVATE EMPLOYER’S WRITTEN TESTING POLICY – PURPOSES AND REQUIREMENTS FOR COLLECTION AND TESTING.

(1) A private employer must have a written policy on drug and/or alcohol testing that is consistent with the requirements of this act, including a statement that violation of the policy may result in termination due to misconduct.

(2) A private employer will receive the full benefits of this act, even if its drug and alcohol testing policy does not conform to all of the statutory provisions, if it follows a drug or alcohol testing policy that was negotiated with its employees’ collective bargaining representative or that is consistent with the terms of the collective bargaining agreement.

(3) Testing for the presence of drugs or alcohol by a private employer shall be carried out within the terms of a written policy that has been communicated to affected employees, and is available for review by prospective employees.

(4) The private employer must list the types of tests an employee may be subject to in their written policy, which may include, but are not limited to, the following:

• (a) Baseline;
• (b) Pre-employment;
• (c) Post-accident;
• (d) Random;
• (e) Return to duty;
• (f) Follow-up;
• (g) Reasonable suspicion.

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 re-tested 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.

72-1707. DISCHARGE FOR WORK-RELATED MISCONDUCT – FAILURE OR REFUSAL OF TESTING.

A private employer establishes that an employee was discharged for work-related misconduct, as provided in section 72-1366, Idaho Code, upon a showing that the employer has complied with the requirements of this act and that the discharge was based on:

(1) A confirmed positive drug test or a positive alcohol test, as indicated by a test result of not less than .02 blood alcohol content (BAC), but greater than the level specified in the employer’s substance abuse policy;

(2) The employee’s refusal to provide a sample for testing; or

(3) The employee’s alteration or attempt to alter a test sample by adding a foreign substance for the purpose of making the sample more difficult to analyze; or

(4) The employee’s submission of a sample that is not his or her own.

72-1708. PRIVATE EMPLOYER’S DISCIPLINARY OR REHABILITATIVE ACTIONS BASED ON TESTING – CLAIMANT INELIGIBLE FOR BENEFITS.

(1) Upon receipt of a confirmed positive drug or alcohol test result or other proof which indicates a violation of a private employer’s written policy, or upon the refusal of an employee to provide a test sample, or upon an employee’s alteration of or attempt to alter a test sample, a private employer may use that test result or the employee’s conduct as the basis for disciplinary or refusal-to-hire action that will result in a claimant’s ineligibility to receive benefits under the provisions of section 72-1366(4), (5), (6) or (7), Idaho Code. Actions by the private employer may include, but are not limited to, the following:

• (a) A requirement that the employee enroll in a private employer-approved rehabilitation, treatment, or counseling program, which may include additional drug or alcohol testing, as a condition of continued employment;
• (b) Suspension of the employee with or without pay for a period of time;
• (c) Termination of the employee;
• (d) Other disciplinary measures in conformance with the private employer’s usual procedures, including any collective bargaining agreement.

(2) Action taken pursuant to this section shall not create any cause of action against the private employer.

72-1709. FAILURE OF CLAIMANT TO ACCEPT SUITABLE WORK.

If a claimant for unemployment benefits does not accept otherwise suitable work, as contemplated in section 72-1366(4), (6) or (7), Idaho Code, because he is required to take a pre-employment drug or alcohol test, the claimant has failed to accept suitable work, unless the claimant is required to pay for costs associated with a negative drug or alcohol test result.

72-1710. LIMITATIONS OF EMPLOYER LIABILITY.

(1) No cause of action arises in favor of any person based upon the absence of a private employer established program or policy of drug or alcohol testing in accordance with this act.

(2) No cause or action arises in favor of any person against a private employer for any of the following:

• (a) Failure to test for drugs or alcohol, or failure to test for a specific drug or other substance;
• (b) Failure to test for, or if tested, a failure to detect, any specific drug or other physical abnormality, problem or defect of any kind; or
• (c) Termination or suspension of any drug or alcohol testing program or policy.

72-1711. FALSE TEST RESULT – PRESUMPTION AND LIMITATION OF DAMAGES IN CLAIM AGAINST PRIVATE EMPLOYER.

(1) No cause of action arises in favor of any person against a private employer who has established a program of drug and alcohol testing in accordance with this act, and who has taken any action based on its established substance abuse and/or disciplinary policies, unless the private employer’s action was based on a false test result, and the private employer knew or clearly should have known that the result was in error.

(2) In any claim where it is alleged that a private employer’s action was based on a false test result:

• (a) There is a rebuttable presumption that the test result was valid if the private employer complied with the provisions of section 72-1704, Idaho Code;
• (b) The private employer is not liable for monetary damages if his reliance on a false test result was reasonable and in good faith; and
• (c) There is no private employer liability for any action taken related to a “false negative” drug or alcohol test.

72-1712. CONFIDENTIALITY OF INFORMATION.

(1) All information, interviews, reports, statements, memoranda or test results, written or otherwise, received through a substance abuse testing program shall be kept confidential, and are intended to be used only for a private employer’s internal business use; or in a proceeding related to any action taken by or against a private employer under section 72-1707, 72,1708 [72-1708] or 72-1711, Idaho Code, or other dispute between the private employer and the employee or applicant; or as required to be disclosed by the United States department of transportation law or regulation or other federal law; or as required by service of legal process.

(2) The information described in subsection (1) of this section shall be the property of the private employer.

(3) A private employer, laboratory, medical review officer, employee assistance program, drug or alcohol rehabilitation program and their agents, who receive or have access to information concerning test results shall keep the information confidential, except as provided in subsection (4) of this section.

(4) Nothing in this chapter prohibits a private employer from using information concerning an employee or job applicant’s substance abuse test results in a lawful manner with respect to that employee or applicant as provided in chapter 2, title 44, Idaho Code.

72-1713. EMPLOYEE NOT “DISABLED.”

An employee or prospective employee whose drug or alcohol test results are verified or confirmed as positive in accordance with the provisions of this act shall not, by virtue of those results alone, be defined as a person with a “disability” for purposes of chapter 59, title 67, Idaho Code.

72-1714. NO PHYSICIAN-PATIENT RELATIONSHIP CREATED.

A physician-patient relationship is not created between an employee or prospective employee, and the private employer or any person performing a drug or alcohol test, solely by the establishment of a drug or alcohol testing program in the workplace.

72-1715. PUBLIC ENTITIES MAY CONDUCT PROGRAMS.

The state of Idaho and any political subdivision thereof may conduct drug and alcohol testing of employees under the provisions of this chapter.

72-1716. IMPLEMENTATION OF ALCOHOL AND DRUG-FREE WORKPLACE PROGRAM-QUALIFICATION OF EMPLOYER PREMIUM REDUCTION.

For each policy of workers’ compensation insurance issued or renewed in the state on, or after July 1, 1999, a reduction in the premium for the policy may be granted by the insurer if the insured certifies to the insurer that it has established and maintained an alcohol and drug-free workplace program that complies with the requirements of sections 72-1701 through 72-1715, Idaho Code.

This is a suggested Drug-Free Workplace Policy

This suggested policy is not legal advice. Employers are strongly urged to consult with legal counsel before adoption of any mandatory drug-testing policy.
(Insert Here the Name of Your Company)

Purpose

The reason we will implement a policy of testing employees for illegal drugs and the presence of alcohol is to take an additional step in providing a safe and productive environment for our employees, so they may be as productive as possible.

Start Date

We will begin drug testing employees on (put your start date here).

Condition of Employment

Being at work with illegal drugs, drugs for which you have no prescription, or with a Blood Alcohol Content (BAC) above the level described below is, after the start date listed above, a violation of the conditions of your employment. Beginning (same date as start date above) your continued employment is conditional upon your satisfactory participation in this program. You are further informed that failure to pass a drug test, or any of the other situations listed in the paragraph titled Discharge for Work Related Misconduct, will be considered work-related misconduct, which is grounds for termination of employment.

Definitions

Drug testing means the scientific analysis of urine, blood, breath, saliva, hair, tissue, and other specimens of the human body for the purpose of detecting a drug or alcohol.

Illegal drug means any drug which is not legally obtainable; any drug which is legally obtainable but has not been legally obtained; any prescribed drug not legally obtained; any prescribed drug not being used for the prescribed purpose; any over-the-counter drug being used at a dosage level other than recommended by the manufacturer or being used for a purpose other than intended by the manufacturer; and any drug being used for a purpose not in accordance with bonafide medical therapy. Examples of illegal drugs are cannabis substances, such as marijuana and hashish, cocaine, heroin, phencyclidine (PCP), and so-called designer drugs and look-alike drugs.
Legal drug means any prescribed drug or over-the-counter drug that has been legally obtained and is being used for the purpose for which prescribed or manufactured.

Employees May be Given These Tests

(List here the tests you may desire to give to your employees. We suggest you list ALL of the following)

• Baseline
• Pre-employment
• Post-accident
• Random
• Return to duty
• Follow-up
• Reasonable suspicion

Discharge for Work-Related Misconduct

You are hereby informed that your employment may be terminated (meaning fired) for any of the following:

• A confirmed positive drug test for any illegal drug or for a legal drug for which you had no valid medical prescription.
• A confirmed positive alcohol test, as indicated by a test result of .02 blood alcohol contest (BAC) or greater.
• Your refusal to provide a sample for testing, when requested.
• The presence in your submitted sample of any foreign material.
• Altering or attempting to alter a test sample for yourself or another.
• Submitting a sample for testing that is not your own.

Rights of Employees or Prospective Employees

Any employee or prospective employee who tests positive for drugs or alcohol will be given written notice of the test result, including the type of substance involved.

The employee will be given the opportunity to discuss and explain the test result with a medical review officer or other qualified person.
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 submitted in writing 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 [put in here the name of your company] will reimburse the cost of the retest, compensate the employee for his or her time if suspended without pay, or if terminated solely because of the positive test, the employee will be reinstated with back pay.

Discharge for Work-Related Misconduct

You are hereby informed that your employment may be terminated (meaning fired) for any of the following:

• A confirmed positive drug test for any illegal drug or for a legal drug for which you have no valid medical prescription.
• A confirmed positive alcohol test, as indicated by a test result of .02 blood alcohol content (BAC ) or greater.
• Your refusal to provide a sample for testing, when requested.
• The presence in your submitted sample of any foreign material.
• Altering or attempting to alter a test sample for yourself or another.

Submitting a sample for testing that is not your own.

Same as above.

Additional Actions

Based on any of the above, any of the following actions may be taken:

• Require that you enroll in a private employer approved rehabilitation, treatment or counseling program, which may include additional drug or alcohol testing as a condition of employment.
• Suspension with or without pay for a period of time.

Termination

The above disciplinary actions will result in the your ineligibility to receive benefits under the provisions of section 72-1366(d), (e), (f) or (g), Idaho Code. These are related to your unemployment benefits. A person with positive test result will not by virtue of those results alone be defined as a person with a “disability” for the purposes of chapter 59, title 67, Idaho Code.

False Test Results (the following is paraphrased from current Idaho law)

No cause of action arises in favor of a person against an employer who has established a program in accordance with Idaho law, who has taken any action based on it’s established substance abuse policies and /or disciplinary policies, unless the actions were as a result of a false test result, and the employer knew or should have known the result was in error.

In any claim where it is alleged that the employer’s actions were based on a false test result:

• There is a presumption that the test was valid if the employer complied with Idaho law.
• The employer is not liable for monetary damages if his reliance on a false test result was reasonable and in good faith.
• There is no employer liability for any action taken related to a “false negative” drug or alcohol test.

Confidentiality

All information relating to testing, or the results of any testing, shall be kept confidential for the employer’s internal business or use in a proceeding related to any action taken by or against the employer.

Acknowledgement

My signature below acknowledges that I have read and understand the above policy with these exceptions: NONE, or as stated below:

Signature Date