2009 Legislative Review

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Arizona: the workers comp premium discount DFWP that had been gutted by the state Supreme Court was finally repealed by the state legislature.

Florida: Those participating in the workers comp premium discount DFWP can now use instant test devices. Four words were changed in the law making this possible. However, the regulations have not yet been changed so the use of instant test devices may be limited to urine. Other changes to the law will have to be considered to make the new changes effective. For example, the current language states that all tests must be administered by a by physicians, physician assistants, registered professional nurses, paramedics or employees of a certified laboratory.

Maryland: New safety regulations require anyone employing a crane operator to institute drug/alcohol programs, including training mandates.

Texas: The Texas Division of Workers Compensation announced plans to repeal regulations relating to the drug-free workplace and hazardous employers programs, because the statutory authority for the programs was repealed under House Bill 7, which took effect Sept. 1, 2005.

A broader impact change will come from the amendments to the Americans with Disabilities Act, effective in January 2009. Regulations have been prepared and are awaiting approval. But, the impact of these new amendments is already being felt.

Essentially, the amendments mandate a broader protection of individuals from workplace discrimination. In practical terms this means that more individuals will be protected including individuals previously without protection. (DOT required testing is specifically exempt from the ADA).

The amendments impact on workplace drug and alcohol testing may include at least the following two items:

1. No longer will an employer be allowed to have a standing requirement that employees (including safety-sensitive workers) report prescribed or over-the-counter medications to the company. (see, EEOC v. Product Fabricators, Inc., D. MN No. 09-CV-2303, (8/31/09))

2. No longer will employers be allowed to test for more than the typical “illegal” drugs, which include amphetamines, cocaine, marijuana, opiates and PCP. (see, EEOC v. Dura Automotive Systems, M.D. TN, civ. Action No. 1:09-cv-00059 (9/14/09)).

3. No longer will anyone but a licensed MD/DO confer with an employee regarding medications currently being taken. Could this directly impact MRO assistants?

Stay tuned; 2010 should be very interesting.