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DRUG TESTING WEBINAR Legal Pitfalls – Part One

DRUG TESTING WEBINAR Legal Pitfalls – Part One. James H. Gilliam Brown Winick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 gilliam@brownwinick.com. What elements are required to commence a drug/alcohol testing program?. Written policy Awareness program Supervisory training.

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DRUG TESTING WEBINAR Legal Pitfalls – Part One

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  1. DRUG TESTING WEBINAR Legal Pitfalls – Part One James H. Gilliam Brown Winick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 gilliam@brownwinick.com

  2. What elements are required to commence a drug/alcohol testing program?

  3. Written policy • Awareness program • Supervisory training

  4. How is the policy communicated to employees?

  5. Written policy must be provided in advance to every employee subject to testing and must also be available for review by employees and prospective employees.

  6. What are the minimum requirements for a drug/alcohol testing policy?

  7. Policy must provide for uniform requirements for disciplinary or rehabilitation actions upon a confirmed positive test result or upon refusal to provide a sample.

  8. Policy must provide that any action taken against an employee shall be based only on the results of a confirmed test.

  9. If rehabilitation is required by law, the policy must explain that no action will be taken if the employee complies with rehab and successfully completes rehab.

  10. Policy must identify the circumstances under which testing will be conducted.

  11. If rehabilitation is required by law, the policy must explain that no action will be taken if the employee complies with rehab and successfully completes rehab.

  12. Pre-employment • Reasonable suspicion • Unannounced or “random” • Rehabilitation • Workplace accidents • Any time permitted by federal law

  13. If alcohol testing is conducted, the policy must provide that the minimum level for testing is .04.

  14. If testing of minors is to be conducted, the policy must require the employer to provide the parent a copy of the policy and obtain a receipt or acknowledgement of delivery.

  15. Do we have to tell the employee what we are testing for?

  16. Employee must have an opportunity to provide relevant information, including prescription/non-prescription drug use and medical information. To assist, the employer must provide a list of drugs tested.

  17. What is an Awareness Program?

  18. An employer must establish an awareness program to generally educate employees of the dangers of drugs/alcohol in the workplace.

  19. What are the minimum requirements for an awareness program?

  20. For those employers with an EAP, the employer must post a notice to employees informing them of the benefits and policies under the EAP.

  21. If there is no EAP, employer must compile a resource file of assistance programs, provide notice of the resource file, and provide a summary of information in the file.

  22. What supervisory training is required?

  23. All supervisory personnel involved in testing must receive two (2) hours initial training and one (1) hour annually thereafter.

  24. What subjects must be covered?

  25. Information concerning recognition of evidence of drug/alcohol abuse

  26. The documentation and corroboration of abuse.

  27. Referral of employees to the EAP/resource file.

  28. Do we pay the employee for the time taken to complete testing?

  29. Yes. The time required for testing, including travel time, is work time for purposes of FLSA/compensation/benefits

  30. Do we have to pay mileage for the employee’s trip to our off-site testing facility?

  31. Yes. The employer is required to provide transportation or pay reasonable transportation costs.

  32. Do we test prospective employees before or after we make an offer?

  33. Drugs – pre-offer permitted • Alcohol – If ADA applies (15 or more employees) post offer

  34. What is random testing?

  35. Testing conducted on a periodic basis, without advance notice to the employee prior to the date of the test, and without individualized suspicion.

  36. How are employees chosen for random testing?

  37. Employer must first define the pool of employees subject to random testing.

  38. Entire employee population at a worksite.

  39. Entire full-time active employee population at a worksite.

  40. All employees at a worksite in a safety sensitive position.

  41. What is a safety sensitive position?

  42. A job where an accident can cause loss of life, serious bodily injury, significant property or environmental damage, including the immediate supervision of such jobs.

  43. Can we create more than one pool of safety sensitive positions?

  44. Yes. However, an employee can only be assigned to one pool.

  45. Can management be excluded from random testing?

  46. No. By definition, managers must be included in whatever pool is selected.

  47. How does the random process work?

  48. The employer cannot control the random selection; an independent entity must be used.

  49. The independent entity must use a computer-based random number generator using SSNs, payroll ID numbers, etc.

  50. Can we random test all employees?

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