2009 Legislative Review:

(December 31, 2009) As 2009 comes to a close I wanted to look back at this year’s major legislative changes in workplace drug/alcohol testing. In case you missed them or as a review here are the major changes:

Arizona: the workers comp premium discount DFWP that had been gutted by the state Supreme Court was finally repealed by the state legislature.

(October 9, 2009) Is pre-employment testing limited to safety-sensitive jobs? The Ninth Circuit Court of Appeals in San Francisco recently rendered an opinion raising questions about the scope of pre-employment drug testing. In Lanier v. City of Woodburn the Court concluded that it was unconstitutional for an Oregon town to drug test a person who applied for the job of library page. The Court refused to agree with Lanier that the City’s policy was unconstitutional on its face, but did agree that, as applied to the job of library page, the requirement to test was unconstitutional.

(August 3, 2009) DOT announced last week that as of August 31st the new direct observation rules must be observed. Those rules require (previously permitted) regulated employers to directly observe every collection upon return to duty or follow-up to a violation. Under Section 40.67(b)(i) the direct observation includes a requirement that the donor "raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show [the collector] by turning around, that they do not have a prosthetic device."

(July 21, 2009) Recently I had a conversation with a multi-state employer who had lost an unemployment battle in Iowa. The employee applying for benefits was fired for testing positive for drug use. The Administrative Law Judge, when ruling against the employer, detailed the many ways the company drug testing program violated state law.

(July 19, 2009) As I talk to employers about their workplace drug and alcohol testing programs I am frequently amazed when some tell me they don’t do post-accident or post-injury drug and alcohol testing. Why am I amazed by that? Because the greatest financial benefit from drug testing comes from post-accident testing. Post-accident drug testing puts you in position (or better position) to defeat a workers compensation claim. In some states (CO, MO) if there is a positive test YOU WIN!!

(July 10, 2009) Two Minnesota Vikings football players who tested positive for a banned substance were granted a temporary restraining order on Thursday, July 9, 2009, effectively blocking their suspensions imposed under NFL rules. The players claim their suspensions would violate the state drug testing law which prohibits discipline upon the first positive unless certain conditions, not applicable here, exist. (Sec. 181.953, Subd 10 (b))

(July 2, 2009) Multi-State Employers MUST have separate State Policies

Q: Do I have to have a written drug test policy?
A: Yes.

Q: Do I have to have state-specific written policies?
A: Yes.

Q: Can’t we just have one that mirrors DOT?
A: No.

(May 25, 2009) Drug testing and HIPAA. There seems to be lots of confusion recently on this subject. Does HIPAA apply to workplace drug or alcohol test results? Most would answer no. But, there is still fear out there that it does and we in the drug testing world run into it when we seek the cooperation of a medical practicioner for proof of a prescription or sometimes in a response to a bid. (As one subscriber described to me this week).

(April 27, 2009) — School employees not originally hired as drivers will not have to submit to a physical examination or drug testing, following a bill signed by Gov. Tim Pawlenty last week.