Drug Free Programs Require an
Understanding of Local Laws

One of the fastest growing segments of our business today is what we refer to as drug free workplace testing. Many companies are increasingly looking at both pre-employment drug testing and random drug testing for new and existing employees who are not already required by law to be in a drug testing program. While pre-employment testing is broadly excepted, random testing in non-safety related situations may prove to be little bit more challenging.

Hopefully, this growth in our drug free programs, as well as the federal DOT and state PUC programs, is a reflection of not only our aggressive marketing and pricing, but our qualified staff and quality programs.

Just this month, our Account Specialists completed the reading and in most cases re-reading of the regulations that drive the drug testing industry, CFR Parts 40 & 382, including guidance and interpretations of the federal regulations.

In addition, most of our staff has completed a specimen collector training course to become certified urine drug screen collectors, as well as breathe alcohol technicians. To further our commitment to continued education, our management staff regularly attends various drug and alcohol industry conferences throughout the year.

As you can see our organization is very committed to offering our clients quality service!

One of the things I would like to discuss in this article is the importance of having a Substance Abuse and Alcohol Misuse Company Policy. Many may not be aware of the fact, including the individual owner-operator, that this has always been a requirement for federal DOT regulated companies.

AADT has supplied a sample Substance Abuse and Alcohol Misuse Company Policy in your Company Compliance Manual in section 4, if you are federal DOT regulated, and section 8, for the Drug Free Workplace.

Important Issues to Consider Before
Implementing a Drug Free Workplace Program

According to various publications I’ve reviewed involving litigated cases within California concerning drug testing of employees and discussions I have had with other business’s regarding their experiences concerning this subject, the fact is, California is considered to be a very liberal civil rights state and that sometimes causes problems. It seems an employer in California is at some what of a disadvantage when it comes to having all employees within the company subject to a random drug and alcohol testing program because of the direct impact the right to privacy set forth in the California Constitution. Unless an employer can prove the employee’s position is of a safety sensitive nature or a requirement for competing business interest, there is a fine line as to what is and isn’t’ acceptable based on California case law. And its just not case law that causes obstacles to random testing. For instance, in the City of San Francisco1 there is a local ordinance that prohibits drug and alcohol testing, with the exception of pre-employment or post accident, for non regulated employees.

So what does all of this mean?
As an employer in the state of California, you can require an applicant to take a pre-employment or post hire drug test with the understanding if the applicant tests negative they have an immediate position available to them. Alcohol testing for pre-employment or post hire is allowable as your company’s requirement per your written company policy providing this is the requirement for all applicants (in other words you can not choose one applicant to test and not another).

There is also case law that supports post accident testing in certain situations.
Keep in mind, before any testing is allowed, a written company policy must be in place. Without a formal Substance Abuse and Alcohol Misuse Company Policy, companies would have a next to impossible chance of prevailing if the program validity was challenged. Without such a policy an employee could contest that he/she did not have prior knowledge that this was prohibited activity within the company.

It is always advisable that each individual company seek legal counsel regarding federal, state and local labor laws when implementing a company policy.

The following represents some basic terms and definitions that an employer should understand before they implement a drug free testing program.

Random Testing is limited to safety sensitive positions or where competing business interest can be shown. Of course there is no defined description for what constitutes either and if contested it would be on a case by case basis. Safety in many cases could be considered ambiguous and hard to directly define as being applicable to every employee’s job. While an example of competing business interests may be in order to obtain a job such as a contract where the contractor, for in insurance purposes, requires anyone coming on to the jobsite to show proof of a random drug and/or alcohol testing program. Or in the recent situation of the tow truck industry, the California Highway Patrol (CHP) is requiring any towing company that wants to be on their dispatch rotation listings to be enrolled in such a program. Even though many of the tow trucks do not fall under the federal DOT requirements because they are not within the 26,001 lbs. or more to be classified as safety sensitive.

Reasonable Cause or Reasonable Suspicion Testing is acceptable provided a company policy is in place and there has been a person(s) trained on alcohol misuse and controlled substance use including the physical, behavioral, speech and performance indicators of probable use. This person should be in a supervisor position and have daily interaction with the employee. C-DATA has the training material available in the form of a video and a reasonable suspicion documentation form, Form 107 in Section 6 of the Company Compliance Manual.

Post Accident or Incident Testing is acceptable with the exception of San Francisco providing it is not a federal DOT requirement, but it is your responsibility to know when it is considered to be a federal DOT or non-DOT test. We will be covering the post accident requirements in the up-coming August issue of the CTN.

Return-to-Duty and Follow-up Testing again is acceptable, with the exception of San Francisco, providing it is not a federal DOT requirement. If the employee is federal DOT regulated the requirements in accordance with 49 CFR Part 40, Subpart O would apply. Drug Free Workplace testing would be subject to the requirements outlined in your individual company’s policy regarding the misuse of controlled substances and/or alcohol use.

U.S Supreme Court Decision Allows Feds To Enforce the
CSA Against Medical Marijuana Users in California

In the past there has been tension between California’s Compassionate Use Law and the federal Controlled Substance Act (CSA). While state law legalizes medical marijuana use with a doctor’s recommendation, the federal statute criminalizes drug use and possession. The issue in question has been whether the Compassionate Use Law, with the state disability bias law, compels employers to retain or hire individuals who fail workplace drug tests because they use marijuana for medical purposes. In a new ruling a California’s appeals court has decided that state law doesn’t require such an accommodation.

In a recent case Ross v. Ragingwire Telecommunications Inc., Calif. Court Appeal (3rd Dist.) No C043392, 2005 involving an employee that had pre-employment tested, was hired and three days later when the test result reported to the employer as positive for marijuana, was terminated. The employee sued the employer charging wrongful termination that the employer failed to accommodate his medical marijuana use which violated the California Fair Employment and Housing Act (FEHA), and was in violation of the state’s public policy to permit medical marijuana use. The employee was disabled with lower back problems and his doctor had recommended marijuana to control the pain.

The employer contested that marijuana is an illegal controlled substance under federal law and that nothing in the Compassionate Use Law requires employers to ignore this prohibition and employ individuals who test positive for marijuana. The court ruled in favor of the employer finding that the employee’s disability was not the cause of termination but rather the use of an illegal drug.

A California appeals court upheld the decision, stating that employers have a legitimate interest, based on such matters as safety and productivity in ascertaining whether new hires for any position currently use illegal drugs and alcohol. Thus, an employer can refuse to employ someone who fails a drug test that’s a precondition to employment, even if the person has already started working before taking the drug test. In addition, an employer isn’t required to accommodate a disability by permitting illegal drug use.

The bottom line in this case, then, was whether the employee’s use of marijuana was legal. The court pointed out that it was illegal in light of the federal CSA, even though such use doesn’t violate California’s criminal laws because of Compassionate Use Law. The court went on to conclude that “unless or until the Legislature, or electorate, amends FEHA to compel an employer to accommodate an employee’s medicinal use of marijuana,” an employer does not violate FEHA by firing or refusing to hire a person whose pre-employment drug test reveals that the person is using medical marijuana.”

The court pointed out that the law doesn’t confer the “unfettered right to obtain and use marijuana for medicinal purposes, only the right to do so without incurring state criminal sanctions.”

This decision is good news for employers, as it makes it clear that you don’t have to permit medical marijuana use if it violates your drug testing policies. The courts language appears to apply broadly to current employees as well. However, note the FEHA may still require you to provide an alternative accommodation for a disabled individual who is using medical marijuana. This could include time off to adjust to other pain control medication or for drug rehabilitation.

Note: that throughout this article, when I refer to the applicable federal regulations, I’m referring to CFR 49, Parts 40 & 382; these regulations can be found in Section 5 of the C-DATA Company Compliance Manual or in the C-DATA website at www.c-data.com under links at DOT Office of Drug and Alcohol Policy and Compliance at www.dot.gov/ost/dapc or Federal Motor Carrier Safety Administration at www.fmcsa.dot.gov.

Remember, if you have any questions or concerns regarding your random testing program be sure to contact us, C-DATA’s staff encourages and welcomes your inquires. We are here to help!

Respectfully,
Lonnie