Why 21

Printer-friendly versionSend to friend

(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.

The days of simplicity, of a single, one-fits-all approach to drug testing are gone. Multi-state employers can no longer rely upon a single (corporate) workplace drug test policy. There are at least 21 states (and Boulder, CO) that now require or, depending on employer choices, justify a separate policy. This need is emphasized by recent court decisions in Connecticut, Minnesota, Oklahoma and Vermont, among others, which make it increasingly clear that multi-state employers MUST know and follow local rules. This means that “mirroring” DOT may be the biggest mistake an employer can make.

You have to follow the rules that apply to the test being performed, be it DOT-regulated or conducted in a state with its own set of rules.

What are some of those rules? A sample includes the following:

● 7 states limit discipline for the first positive;

● 12 states limit random testing to safety-sensitive jobs only;

● 23 states require either a split sample or retest;

● 23 states require that tests be conducted per federal DOT or DHHS;

● 19 states require written notice of a positive test – IA by certified mail;

● 12 states require that notice/policy be posted;

● 8 states require initial or annual training/education;

● 21 states specifically define what a “specimen” is;

● 18 states have specific alcohol positive levels.

These are but a few of the many state-by-state differences that any multi-state employer must take into account regarding who can be tested, when, how, where and for what substances. Additionally many states expect to see their own format (e.g. Florida, Maine) or have specific language (e.g. Missouri, Mississippi) that must appear somewhere in the policy and/or notices to employees and/or applicants. Failure to follow these rules and expectations could result in significant losses if challenged.

Some recent cases where employers ignored state rules, tested under their “company” policy and as a result lost when challenged include the following:

Oklahoma: 2009, ConocoPhillips pays $583,413 (over $750,000 with attorney’s fees) for willful violation of Oklahoma’s mandatory statute. Estes v. ConocoPhillips Company, Case No. 05-CV-445-GKF-PJC)

Minnesota: 2008, INGDirect pays punitive damages for not accurately enforcing state law. (Wehlage v. ING BANK, FSB, d/b/a/ ING DIRECT, Case No. 07-CV-1852 (PJS/RLE))

Missouri: 2006, Wal-Mart looses unemployment case because the company policy did not accurately reflect state law. (Gaylord v. Wal-Mart Associates, Inc. and Division of Employment Security, WD 65939)

Connecticut: 1996, Employer failed to consider state law requirements when enforcing its policy. (Doyon v. Home Depot U. S. A., Inc. 850 F. Supp.125).

Additionally, if a test was not performed as required under state or local laws an employer will be unable to defeat an unemployment claim or, worse yet, not be able to defeat a workers compensation claim that might have otherwise been easily defended.

The list of states requiring/justifying separate policies and the reason(s) for this are as follows:

1. AL- Voluntary DFWA & Presumptive Denial with warnings required
2. AR- Voluntary DFWA
3. CO- Presumptive Work Comp Denial law
4. CT- Mandatory Law (unique criteria)
5. FL- Voluntary DFWA (unique criteria)
6. GA- Voluntary DFWA (unique criteria)
7. HI- Mandatory Law (unique criteria)
8. IA- Mandatory Law (unique criteria)
9. ID- Voluntary DFWA (unique criteria)
10. ME- Mandatory Law (unique criteria)
11. MN- Mandatory Law (unique criteria)
12. MO- Presumptive Unemployment requirements
13. MS- Voluntary DFWA (unique criteria)
14. MT- Mandatory Law (unique criteria)
15. OH- Voluntary DFWA (unique criteria); Presumptive Work Comp Denial law
16. OK- Mandatory Law (unique criteria)
17. RI- Mandatory Law (unique criteria)
18. TN- Voluntary DFWA (unique criteria)
19. UT- Mandatory Law (unique criteria); Presumptive Work Comp Denial law
20. VT- Mandatory Law (unique criteria)
21. WY- Voluntary DFWA (unique criteria)
22. Boulder, CO, - Mandatory Ordinance (unique criteria)

Ten (10) of these states (and Boulder, CO) are mandatory and there is no choice but to have a separate policy because of required language or other criteria.

Frequently, employers operate under the misconception that if they “mirror” federal DOT rules they are somehow safe from liability and can operate from a single company policy. Nothing is further from the truth. There are many ways that following DOT can get you into trouble, such as states that only permit testing if there is suspicion of “impairment” on the job, states that require different alcohol cutoff levels, states that allow more time to request a split sample to be tested, and many more.

The bottom line, and it really does impact your bottom line, is that you must follow the rules that apply to the tests you are conducting. To do otherwise is simply dodging bullets.