Transcript TITLE SLIDE

DRUG TESTING WEBINAR
Legal Pitfalls – Part One
James H. Gilliam
Brown Winick
666 Grand Avenue, Suite 2000
Des Moines, IA 50309-2510
[email protected]
What elements are required to
commence a drug/alcohol testing
program?
• Written policy
• Awareness program
• Supervisory training
How is the policy communicated to
employees?
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.
What are the minimum requirements
for a drug/alcohol testing policy?
Policy must provide for uniform
requirements for disciplinary or
rehabilitation actions upon a confirmed
positive test result or upon refusal to
provide a sample.
Policy must provide that any action
taken against an employee shall be
based only on the results of a
confirmed test.
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.
Policy must identify the
circumstances under which testing
will be conducted.
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.
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Pre-employment
Reasonable suspicion
Unannounced or “random”
Rehabilitation
Workplace accidents
Any time permitted by federal law
If alcohol testing is conducted, the
policy must provide that the
minimum level for testing is .04.
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.
Do we have to tell the employee
what we are testing for?
Employee must have an opportunity
to provide relevant information,
including prescription/nonprescription drug use and medical
information. To assist, the
employer must provide a list of
drugs tested.
What is an Awareness
Program?
An employer must establish an
awareness program to generally
educate employees of the dangers
of drugs/alcohol in the workplace.
What are the minimum requirements
for an awareness program?
For those employers with an EAP,
the employer must post a notice to
employees informing them of the
benefits and policies under the
EAP.
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.
What supervisory training is
required?
All supervisory personnel involved in
testing must receive two (2) hours
initial training and one (1) hour
annually thereafter.
What subjects must be
covered?
• Information concerning recognition
of evidence of drug/alcohol abuse
• The documentation and
corroboration of abuse.
• Referral of employees to the
EAP/resource file.
Do we pay the employee for the time
taken to complete testing?
Yes. The time required for testing,
including travel time, is work time
for purposes of
FLSA/compensation/benefits
Do we have to pay mileage for the
employee’s trip to our off-site
testing facility?
Yes. The employer is required to
provide transportation or pay
reasonable transportation costs.
Do we test prospective employees
before or after we make an offer?
• Drugs – pre-offer permitted
• Alcohol – If ADA applies (15 or
more employees) post offer
What is random testing?
Testing conducted on a periodic
basis, without advance notice to the
employee prior to the date of the
test, and without individualized
suspicion.
How are employees chosen for
random testing?
Employer must first define the pool of
employees subject to random
testing.
Entire employee population at a
worksite.
Entire full-time active employee
population at a worksite.
All employees at a worksite in a
safety sensitive position.
What is a safety sensitive
position?
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.
Can we create more than one pool of
safety sensitive positions?
Yes. However, an employee can
only be assigned to one pool.
Can management be excluded from
random testing?
No. By definition, managers must be
included in whatever pool is
selected.
How does the random process
work?
The employer cannot control the
random selection; an independent
entity must be used.
The independent entity must use a
computer-based random number
generator using SSNs, payroll ID
numbers, etc.
Can we random test all
employees?
No. Each member of the pool must
have an equal chance of selection
or non-selection.
Website: www.brownwinick.com
Toll Free Phone Number: 1-888-282-3515
OFFICE LOCATIONS:
666 Grand Avenue, Suite 2000
Des Moines, Iowa 50309-2510
Telephone: (515) 242-2400
Facsimile: (515) 283-0231
616 Franklin Place
Pella, Iowa 50219
Telephone: (641) 628-4513
Facsimile: (641) 628-8494