International Door & Operator Industry

NOV-DEC 2013

Garage door industry magazine for garage door dealers, garage door manufacturers, garage door distributors, garage door installers, loading docks, garage door operators and openers, gates, and tools for the door industry.

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LEGAL&LEGISLATION; (continued from page 10) Approved Methodology Requirements Many states require private employers to utilize "approved" or "reliable" methodology. Most of the states have described in scientifc detail the means and manner of the testing, while others, such as North Carolina, place more emphasis on using an "approved laboratory." Most of these statutes also call for reasonable and sanitary conditions that preserve the dignity of the employee. Most states also have established "chain of custody" procedures regarding the employee's specimen. As examples of particular state provisions: • Arkansas makes it a crime to sell, use, or otherwise distribute synthetic urine in a clear attempt to prevent fraudulent testing. • North Dakota has a similar prohibition against any attempts to defraud a drug test. • New Mexico has strict policies governing methodology for "safetysensitive" positions. • Oklahoma has specifc rules regarding testing of hair samples. Written Policies As an attorney, I am a strong advocate of written employment policies that preserve an employee's "at-will" or "right to work" status while implementing rules in the workplace. As a general rule, an employment policy or employee manual does not alter the "at-will" status of employees, so long as the provisions do not specifcally describe particular terms or durations for employment. Idaho specifcally states in its policy that the "at-will" status of employees is unaffected by the state controlled substance regulations, but I would recommend you consult with your own attorney to make sure your state's laws and policies do not confict with your intent to have at-will employment. Most states with controlled substance regulations require a written policy to be distributed or otherwise made available to employees. Although states are split regarding whether or not an employer failing to abide by the state's policy will be subject to civil or criminal fnes, some states, such as Hawaii, Florida, and Connecticut, impose monetary fnes if an employer either creates a workplace policy that violates the state regulatory statute or fails to abide by the statute altogether. confrmation testing of a positive sample. Interestingly, Arizona grants employees the right to explain a positive result, although it is up to the employer to determine whether or not the explanation has any merit. Allowing explanation can be risky, however, as it could lead to a discrimination claim if the employer tends to believe a certain class of employees over others. Another trend is to treat prospective employees (e.g. applicants) differently from current employees. State statutes commonly require a level of reasonable suspicion or other showing of cause to initiate a drug or alcohol test on a current employee while most state statues more freely allow for a drug test to be completed as a condition of employment for job applicants. While most states leave the "reasonable suspicion" standard to be defned by the individual employers, some states, such as Iowa, defne "reasonable suspicion" in the statute. Nearly all states with a statute regulating employer-initiated drug tests call for the results to be maintained in a confdential manner. This would typically require the employer to maintain a separate database or fling system for all drug tests results, with each employee's results maintained in a separate fle or folder. Only certain individuals within the company should be granted access to these documents, such as an HR representative, and any remaining records after an employee's termination need to be returned to the employee or destroyed at the employee's command. It is good practice to NOT intermingle employee drug test results with the employee's standard employment fle in order to maintain confdentiality. Continued on page 15 Many states also provide for confrmation testing to protect employees from any false positives. This usually is coupled with a requirement that the employee pay for any V O L U M E Confdentiality 4 6 I S S U E 6 2 0 1 3 13

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