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I. General Considerations
Private sector workplace drug testing (testing that is not mandated by federal regulation) is, however, subject to applicable state and local law. Since the 1980s, states have passed various laws regulating employer policies and/or the technical procedures. These state laws vary greatly in their intent and goals. Some are clearly designed to limit or inhibit the application of workplace drug testing, others to encourage testing. Most attempt to balance employee rights with employer interests.
This guide is designed to provide a quick reference on where and how on-site tests are regulated by state law. This guide is limited to the use of immunochemical drug screening devices in private employment drug testing programs. This guide is not designed to cover all aspects of the state law on employment drug testing, nor does it address the testing of state and/or local government employees.
A provider of point-of-collection (on-site) drug screening needs to be knowledgeable of any applicable state statute or regulation where on-site testing will be used. Normally, on-site testing involves situations where the employer, employee and testing facility are located in the same state. In some cases, however, more than one state law may be involved. This may require knowledge of laws in neighboring states.
In the case where a prospective donor is a resident of a state in which the law restricts the use of on-site tests, the provider should ask for clarification from the employer.
The following sections divide the state laws into five categories. In some cases these are deceiving. A state that appears to have a number of restrictions may in fact be more favorable to on-site testing than a state that does not appear to have many restrictions.
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II. States That Do Not Restrict Workplace On-Site Screening
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Twenty-one States do not have any restrictions or limitations on the use of on-site testing devices. An additional eight states require that if an on-site device is used, a presumptive positive result must be confirmed by a laboratory.
These states do not have any specific restrictions or conditions on the use of on-site testing devices:
Arkansas
California*
Colorado
Delaware
District of Columbia
Indiana
Kentucky*
Michigan
Missouri
New Hampshire
New Jersey
New Mexico
North Dakota
Ohio
Pennsylvania
South Carolina
South Dakota
Texas
Virginia
West Virginia
Wisconsin
Wyoming
*See section VI.
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III. States with Drug-Free Workplace Acts
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Drug-Free Workplace Acts have been enacted in a number of states. A unique feature of these acts is that compliance with them is voluntary. Employers are given a number of inducements to voluntarily comply, such as workers' compensation premium discounts. These drug-free workplace acts typically require the use of a laboratory and have detailed technical procedures calling for the screening and confirmation of tests in state or federally approved laboratories. It is unclear whether an employer will lose some or all of the benefits of compliance with the voluntary drug-free workplace law if an on-site screen is added to the process.
The best recommendation to a provider of rapid immunoassay screening service is to inform the employer that a trade-off for rapid results may be losing some or all of the benefits of the state drug-free workplace act. Many of these states are studying the issue and there may be some amendments in the future. This is somewhat of an uncharted area, and employers who wish to integrate the limited use of rapid immunoassay screening such as the pre-screening procedure described here should get an independent legal opinion.
Alabama
Arizona
Florida
Georgia*
Mississippi
Tennessee*
Washington
*See section VI.
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IV. States which Require Confirmation of On-Site Results
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The following states allow on-site testing on the condition that presumptive positive results must be confirmed by a laboratory.
Alaska
Connecticut*
Idaho
Nebraska
North Carolina
Rhode Island
Utah
* See section VI.
V. States which Restrict Workplace Drug Testing to "Approved" Laboratories
The following states have statutes which require the use of an approved laboratory. What constitutes an approved laboratory varies from state to state, and actual practices may not be evident from the statutory language. A doctor's office or hospital emergency room may qualify as an approved laboratory for on-site drug testing.
Hawaii
Iowa
Kansas
Louisiana
Maine
Maryland
Minnesota
Nevada
Oregon
Oklahoma
Vermont
VI. States Where Clinical Laboratory Law May Apply
Although it is clear that forensic drug testing, which includes workplace drug testing, is exempt from coverage under the federal Clinical Laboratory Act, a number of states have clinical laws that can be interrupted by state officials to apply to all drug testing. The states where there is statutory language to support that interpretation are:
Connecticut
Massachusetts
Illinois
New York
There is a subset of states where, although there is no statutory basis, a state official has interpreted the state law to cover workplace drug and alcohol testing. These interpretations have not been challenged.
California
Kentucky
Tennessee
Georgia
Nevada
**DISCLAIMER:
This information is for evaluation purposes and to inform only. This information is NOT to be construed as legal advice from Rapidxams. Please have an attorney review this information prior to any use.
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