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On January 23, 2017, the Department of Health and Human Services (HHS) published new regulations that modify mandated federal drug testing programs. The changes not only include the addition of new drugs to the Federal panel, but also add clarification for common drugs, corrections, and updates to outdated information. The changes went into effect on October 1, 2017.

The Federal Department of Transportation (DOT) issued a final ruling to their alcohol and drug testing regulations on November 13, 2017.  Originally proposed in January of 2017, the ruling is now final and will go into effect on January 1, 2018. These revisions harmonize DOT testing regulations with the HHS Mandatory Guidelines that were revised earlier this year.

Many State Laws Are Affected by Changes to Federal Drug Testing Regulations

Although HHS and DOT do not have any authority over states and their laws, the new regulations have impact on over 20 states.  This is due to the wording of many state drug testing laws that require compliance with the federal guidelines, by deferring to the Department of Health and Human Services, the Substance Abuse and Mental Health Services Administration, the Mandatory Guidelines for Federal Workplace Programs, the Department of Transportation, or 49 CFR Part 40.

Of those states, municipalities, and territories with drug testing laws, some are mandatory while others are voluntary. Only under mandatory drug testing laws that refer to federal regulations are employers obligated to limit their drug testing to a federal panel.  States that have voluntary laws that reference federal regulations are only required should a company choose to take advantage of the benefits of that law.

Mandatory drug testing laws that require SAMHSA guidelines include:

  • Kansas
  • Louisiana (except for marijuana cutoff levels)
  • Puerto Rico[1]

Mandatory drug testing laws that require DOT guidelines include:

  • Maryland (safety sensitive employees only)
  • Montana[2]

Voluntary drug testing laws that require SAMHSA guidelines include:

  • Alaska[3]
  • Alaska unemployment compensation denial (cutoff levels only)
  • Kentucky[4]
  • Ohio[5]
  • Ohio worker’s compensation denial (cutoff levels for certain substances only)

Voluntary drug testing laws that require DOT guidelines include:

  • Alabama (alcohol testing only)
  • Alabama worker’s compensation denial
  • Arkansas
  • Arkansas unemployment compensation denial[6]
  • Illinois worker’s compensation denial[7]
  • Mississippi[8]
  • Missouri unemployment compensation denial (for specimen collection procedures only)
  • North Dakota worker’s compensation denial (for cutoff levels only, at a minimum)
  • Tennessee
  • Wyoming (drug panel and cutoff level requirements only)

Industry-specific laws that require SAMHSA guidelines include:

  • Illinois public works
  • Indiana mining
  • Kentucky mining
  • West Virginia mining
  • Wisconsin public works

Industry-specific laws that require DOT guidelines:

  • Rhode Island highway maintenance employees
  • Washington transportation companies

Conclusion

It is important that employers notify their provider of changes and request any updated forms, procedures and pricing.  Unlike with SAMHSA and DOT testing, the laboratories and service providers will have no way of knowing where collections will occur without being proactively notified by employers. States that are required to comply with HHS or SAMHSA guidelines must be in compliance with changes now; states that must comply with DOT guidelines must be in compliance by January 1, 2018.

State Law Citations

Alabama

Reference: Ala. Adm. Code 480-5-6-03 (2)

Online Citation: http://www.alabamaadministrativecode.state.al.us/docs/lab/480-5-6.pdf

Type of drug testing law: Voluntary

Wording: “The methodology and procedures for alcohol testing shall conform to the Department of Transportation (D)T) 49 Code of Federal Regulation Part 40, Procedures For Transportation Workplace Drug Testing Programs, Subpart A – General and Subpart C – Alcohol Testing.”

Reference: Ala.Code 25-5-51

Online Citation: https://law.justia.com/codes/alabama/2015/title-25/chapter-5/article-3/section-25-5-51/

Type of drug testing law: Voluntary, worker’s compensation

Wording: “A positive drug test conducted and evaluated pursuant to standards adopted for drug testing by the U.S. Department of Transportation in 49 C.F.R. Part 40 shall be a conclusive presumption of impairment resulting from the use of illegal drugs.”

 

Alaska

Reference: Alaska Stat. 23.10.600-699

Online Citation: http://www.legis.state.ak.us/basis/statutes.asp#23.10.640

Type of drug testing law: Voluntary

Wording: “Except for on-site testing …. Drug testing shall be conducted at a laboratory approved or certified by the Substance Abuse and Mental Health Services Administration…”

 

Arkansas

Reference: Ark.Code Ann. 11-14-102 (8)

Online Citation: https://law.justia.com/codes/arkansas/2015/title-11/chapter-14/

Type of drug testing law: Voluntary

Wording: “All specimen collection and testing for drugs and alcohol under this chapter shall be performed in accordance with the procedures provided for by the United States Department of Transportation rules for workplace drug and alcohol testing compiled at 49 C.F.R., Part 40.”

Reference: Ark.Code.Ann. 11-10-514 (2) (A)

Online Citation: https://law.justia.com/codes/arkansas/2015/title-11/chapter-10/subchapter-5/section-11-10-514/

Type of Drug Testing Law: Voluntary, unemployment compensation

Wording: “If an individual is discharged for testing positive for an illegal drug pursuant to a United States Department of Transportation-qualified drug screen conducted in accordance with the employer’s bona fide written drug policy, the individual is disqualified…”

 

Illinois

Reference: 820 ILCS 305/11 (1) (1)

Online Citation: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2430&ChapterID=68

Type of drug testing law: Voluntary, worker’s compensation

Wording: “All sample collection and testing for alcohol and drugs under this Section shall be performed in accordance with rules to be adopted by the Commission. These rules shall ensure: (1) compliance with the National Labor Relations Act regarding collective bargaining agreements or regulations promulgated by the United States Department of Transportation.”

 

Illinois Public Works

Reference: Kan. 820 ILCS 265/15

Online Citation: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2950&ChapterID=68

Type of drug testing law: Industry specific

Wording: “The testing must be performed by a laboratory that is certified for Federal Workplace Drug Testing Programs by the Substance Abuse and Mental Health Service Administration of the U.S. Department of Health and Human Services.”

      

Indiana Mining

            Reference: Indiana Code 22-10-15-4

Online Citation: http://iga.in.gov/legislative/laws/2017/ic/titles/022#22-10-15

Type of drug testing law: Industry specific

Wording: “An alcohol or a drug test must be conducted in accordance with standards, procedures, and protocols set forth by SAMHSA.”

 

Kansas

Reference: Kan. Admin. Reg. 28-33-12(8),(9)

Online Citation: http://www.sos.ks.gov/pubs/kar/2009/2A002_28_Department_of_Health_and_Environment_Articles_29_through_34_2009_KAR_Vol_2A.pdf

Type of drug testing law: Mandatory

Wording: “Threshold limits used for screening tests shall conform to the mandatory guidelines for federal workplace drug testing programs established by the substance abuse and mental health services administration of the department of health and human services… Threshold limits used for confirmatory testing shall conform to the mandatory guidelines for federal workplace drug testing programs established by the substance abuse and mental health services administration of the department of health and human services…”

 

Kentucky

Reference: 803 KAR 25:280(1)(5)

Online Citation: http://www.lrc.ky.gov/kar/803/025/280.htm

Type of drug testing law: Voluntary

Wording: ”’Drug test’ or ‘test’ means a chemical, biological, or physical instrumental analysis administered by a qualified laboratory, for the purpose of determine the presence or absence of a drug or its metabolites or alcohol pursuant to standards, procedures, and protocols established by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA)…”

Reference: 805 KAR 11:001(1)(5)

Online Citation: http://www.lrc.ky.gov/kar/805/011/001.htm

Type of drug testing law: Industry specific (mining)

Wording: “’Drug test’ or ‘test’ means a chemical, biological, or physical instrumental analysis administered by a qualified laboratory, for the purpose of determining the presence or absence of a drug or its metabolites or alcohol pursuant to standards, procedures, and protocols established by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA) for the collection and testing required by KRS 351.182.”

 

Louisiana

Reference: La Rev. Stat. Ann. 49-1005

Online Citation: https://legis.la.gov/Legis/Law.aspx?d=103471

Type of drug testing law: Mandatory

Wording: “All drug testing of individuals in residence in the state and all drug testing of samples collected in the state, including territorial waters and any other location to which the laws of Louisiana are applicable, shall be performed in SAMHSA-certified, CAP-FUDT-certified, or CAP-FDT-certified laboratories … Drug testing as provided in this Subsection shall be performed in compliance with the SAMHSA guidelines … The Louisiana Department of Health shall have the responsibility to adopt the SAMHSA guidelines for purposes of governing drug-testing programs for specimens collected…”

 

Maryland

Reference: Maryland Reg. Code 09.12.26.05

Online Citation: http://www.dsd.state.md.us/comar/comarhtml/09/09.12.26.05.htm

Type of drug testing law: Mandatory, safety sensitive employees only

Wording: “An employer who employs individuals within a safety sensitive position shall have a drug and alcohol free workplace and substance abuse policy as required by this regulation… Testing requirements that are consistent with 49 CFR Part 40, U.S. Department of Transportation, and Health-General Article, §17-214, Annotated Code of Maryland.”

 

Mississippi

Reference: Board of Health Rule 53.41

Online Citation: http://www.msdh.state.ms.us/msdhsite/_static/resources/748.pdf

Type of drug testing law: Voluntary

Wording: “An employer may include in its drug and alcohol testing protocols marijuana, cocaine, opiates, amphetamines, phencyclidine, alcohol and other controlled substances.  However, if testing for controlled substances other than those specifically named above is conducted, testing for such substances can be done only if an appropriate federal agency has established an approved protocol and positive threshold for each such substance.”

 

Missouri

Reference: Missouri Rev. Stat. 288.045 (6)

Online Citation: http://revisor.mo.gov/main/Home.aspx

Type of drug testing law: Voluntary, unemployment compensation

Wording: “All specimen collection for drugs and alcohol under this chapter shall be performed in accordance with the procedures provided for by the United States Department of Transportation rules for workplace drug and alcohol testing compiled at 49 C.F.R., Part 40.”

 

Montana

Reference: Mont. Code Ann.39-2-207

Online Citation: http://leg.mt.gov/bills/mca/39/2/39-2-205.htm

Type of drug testing law: Mandatory

Wording: “Controlled substance and alcohol testing procedures for samples that are covered by 49 CFR, part 40, must conform to 49 CFR, part 40.”

 

North Dakota

Reference: North Dakota Cent. Code 65-01-11

Online Citation: http://www.legis.nd.gov/cencode/t65c01.pdf

Type of drug testing law: Voluntary, worker’s compensation

Wording: “An employer who has a mandatory drug alcohol testing policy for work accidents, or an employer or a doctor who has reasonable grounds to suspect an employee’s alleged work injury was caused by the employee’s voluntary impairment caused by use of alcohol or illegal use of a controlled substance may request that the employee undergo testing to determine if the employee had alcohol or the controlled substance in the employee’s system at levels greater than the limit set by the United States department of transportation at the time of the injury.”

 

Ohio

Reference: Drug-Free Safety Program Guide p.9

Online Citation: https://www.bwc.ohio.gov/downloads/blankpdf/DFSPGuide.pdf

Type of drug testing law: Voluntary

Wording: “Discuss costs with the collection site that serves as your link to the services of a laboratory certified by the Substance Abuse and Mental Health Services Administration (SAMHSA).  Through such consultation, you will be aware of the cut-off levels recommended by the SAMHSA-certified lab….To conduct a re-test, the employer may arrange for the collection site to facilitate urine analysis from a different SAMHSA-certified laboratory.”

Reference: Ohio Rev. Code Ann. 4123.54(B)

Online Citation: http://codes.ohio.gov/orc/4123.54v1

Type of drug testing law: Voluntary, worker’s compensation

Wording: “The employee, through a qualifying chemical test administered within thirty-two hours of an injury, is determined to have barbiturates, benzodiazepines, or methadone in the employee’s system that tests above levels established by laboratories certified by the United States department of health and human services.”

 

Puerto Rico

Reference: Laws of Puerto Rico 29-8-161b

Online Citation: https://www.lexisnexis.com/hottopics/lawsofpuertorico/

Type of drug testing law: Mandatory

Wording: “The tests made on the sample shall be conducted pursuant to scientifically acceptable analytical procedures for such type of test, by a certified laboratory, as recommended in the Mandatory Guidelines for Federal Workplace Drug Testing Program.”

 

Rhode Island

Reference: RI Gen L 28-6.5-1 (e) (3)

Online Citation: http://webserver.rilin.state.ri.us/Statutes/TITLE28/28-6.5/28-6.5-1.HTM

Type of drug testing law: Industry-specific, highway maintenance

Wording: “Nothing in this chapter shall be construed to: Prohibit an employer in the highway maintenance industry, which shall include the construction, upkeep, maintenance and repair of the state’s highways, roads and bridges including the repaving or resurfacing of the same, from requiring testing otherwise barred by this chapter, provided the testing is performed as regulated under 49 C.F.R. part 40.”

 

Tennessee

Reference: Tennessee Code Ann. 50-9-103

Online Citation: https://law.justia.com/codes/tennessee/2015/title-50/chapter-9/section-50-9-107/

Type of drug testing law: Voluntary

Wording: “All specimen collection and testing for drugs and alcohol under this chapter shall be performed in accordance with the procedures provided for by the United States department of transportation rules for workplace drug and alcohol testing compiled at 49 CFR part 40.”

 

Washington

Reference: WAC 480-30-221

Online Citation: http://apps.leg.wa.gov/WAC/default.aspx?cite=480-30-221

Type of drug testing law: Industry specific, transportation

Wording: “[C]ompanies must also comply with the parts of Title 49, Code of Federal Regulations (49 C.F.R.), adopted by reference, that are shown in the following chart.”

 

West Virginia Mining

Reference: West Virginia Code 22A-1A-1(a)(1)

Online Citation: http://www.legis.state.wv.us/wvcode/Code.cfm?chap=22a&art=1A#01A

Type of drug testing law: Industry specific

Wording: “Collected Samples shall be tested by laboratories certified by the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA) for collection and testing.  Notwithstanding the provisions of this subdivision, the mine operator may implement a more stringent substance abuse screening policy and program.”

 

Wisconsin Public Works

Reference: Wisconsin Stat. 103.503(4)

Online Citation: https://docs.legis.wisconsin.gov/statutes/statutes/103/503

Type of drug testing law: Industry specific

Wording: “Testing for the presence of drugs or alcohol in an employee’s system and the handling of test specimens shall be conducted in accordance with guidelines for laboratory testing procedures and chain-of-custody procedures established by the substance abuse and mental health services administration of the federal department of health and human services.”

 

Wyoming

Reference: Wyoming Division Ch. 10-2 (1) and 1-4 (u)

Online Citation: https://rules.wyo.gov/Search.aspx?mode=1

Type of drug testing law: Voluntary

Wording: “Drug Test Means any chemical, biological, or physical instrumental analysis administered by a certified laboratory for the purpose of determining the presence, or absence of a drug or its metabolites pursuant to regulations governing drug or alcohol testing adopted by the United States Department of Transportation.”


[1] Puerto Rico has state-specific drug panel requirements, but adheres to SAMHSA standards in most other respects. HHS changes will not alter the drug panel requirements, but all other HHS changes will apply.

[2] Montana only requires the DOT panel as a minimum. This means employers can add to it, but they must ensure their panel aligns with the DOT panel by the January 1, 2018 effective date.

[3] Alaska only requires the SAMHSA panel as a minimum. This means employers can add to it but they must ensure their panel aligns with the HHS panel by the October 1, 2017 effective date.

[4] Kentucky has state-specific drug panel requirements, but adheres to SAMHSA standards in most other respects. HHS changes will not alter the drug panel requirements, but all other HHS changes will apply.

[5] Ohio only requires the SAMHSA panel as a minimum. This means employers can add to it but they must ensure their panel aligns with the HHS panel by the October 1, 2017 effective date.

[6] Arkansas UC requires compliance with either DOT regulations or the National Labor Relations Act.

[7] Illinois WC requires compliance with either DOT regulations or the National Labor Relations Act.

[8] Mississippi regulation requires federal agency protocol and threshold for any substance other than marijuana, cocaine, opiates, amphetamines, phencyclidine, and alcohol.

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