Drug Testing Law Summaries

Alabama's "drug-free workplace program law" is located in the Alabama Code at Title 25, Chapter 5, Article 13.

Definitions

Alcohol. --means ethyl alcohol, hydrated oxide of ethyl, or spirits of wine, from whatever source or by whatever process produced (Sec. 25-5-331(1)).

Chain of custody. --refers to the methodology of tracking specified materials, specimens, or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all of the materials, specimens, or substances and providing for accountability at each stage in handling, testing, and storing materials, specimens, or substances and reporting test results (Sec. 25-5-331(2)).

Confirmation test/confirmed test. --means a second analytical procedure used to identify the presence of a specific drug or metabolite in a specimen. The confirmation test must be different in scientific principle from that of the initial test procedure. The confirmation method must be capable of providing requisite specificity, sensitivity, and quantitative accuracy (Sec. 25-5-331(3)).

Drug. --includes amphetamines, cannabinoids, cocaine, phencyclidine (PCP), methadone, methaqualone, opiates, barbiturates, benzodiazepines, propoxyphene, or a metabolite of any of the substances (Sec. 25-5-331(4)).

Employee. --includes any person who works for salary, wages, or other remuneration for an employer (Sec. 25-5-331(5)).

Employee assistance program. --a program designed to assist in the identification and resolution of job performance problems associated with employees impaired by personal concerns. A minimum level of core services include consultation and training; professional, confidential, appropriate, and timely problem assessment services; short-term problem resolution; referrals for appropriate diagnosis, treatment, and assistance; follow-up and monitoring; employee education; and quality assurance (Sec. 25-5-331(6)).

Employer. --means a person or entity that is subject to the Alabama Workers' Compensation Law, except that Alabama's drug-free workplace program law does not apply to individual self-insurers or members of group self-insurance funds (Sec. 25-5-331(7)).

Initial test. --a sensitive, rapid, and reliable procedure to identify negative and presumptive positive specimens. All initial tests must use an immunoassay procedure or an equivalent procedure or must use a more accurate scientifically accepted method approved by the National Institute on Drug Abuse as more accurate technology becomes available in a cost-effective form (Sec. 25-5-331(8)).

Job applicant. --a person who has applied for a position with an employer and has been offered employment conditioned upon successfully passing a substance abuse test and may have begun work pending the results of the substance abuse test (Sec. 25-5-331(9)).

Nonprescription medication. --a drug or medication authorized pursuant to federal or state law for general distribution and use without a prescription in the treatment of human disease, ailments, or injuries (Sec. 25-5-331(10)).

Prescription medication. --a drug or medication lawfully prescribed by a physician for an individual and taken in accordance with the prescription (Sec. 25-5-331(11)).

Reasonable suspicion testing. --substance abuse testing based on a belief that an employee is using or has used drugs or alcohol in violation of the policy of the employer drawn from specific objective and articulate facts and reasonable inferences drawn from the facts in light of experience. Among other things, the facts and inferences may be based upon, but not limited to, the following (Sec. 25-5-331(12)):

(1) observable phenomena while at work, such as direct observation of substance abuse or of the physical symptoms or manifestations of being impaired due to substance abuse.

(2) abnormal conduct or erratic behavior while at work or a significant deterioration in work performance.

(3) a report of substance abuse provided by a reliable and credible source.

(4) evidence that an individual has tampered with any substance abuse test during the individual's employment with the current employer.

(5) information that an employee has caused or contributed to an accident while at work.

(6) evidence that an employee has used, possessed, sold, solicited, or transferred drugs while working or while on the premises of the employer or while operating the employer's vehicle, machinery, or equipment.

Rehabilitation program. --an established program capable of providing expert identification, assessment, and resolution of employee drug or alcohol abuse in a confidential and timely service. The service must in all cases be provided by persons licensed or appropriately certified as health professionals to provide drug or alcohol rehabilitative services (Sec. 25-5-331(13)).

Specimen. --tissue, blood, breath, urine, or other product of the human body capable of revealing the presence of drugs or their metabolites or of alcohol (Sec. 25-5-331(14)).

Substance. --drugs or alcohol (Sec. 25-5-331(15)).

Substance abuse test/test. --means any chemical, biological, or physical instrumental analysis administered for the purpose of determining the presence or absence of a drug or its metabolites or of alcohol (Sec. 25-5-331(16)).

Coverage

It is not mandatory that an employer establish a drug-free workplace program. However, if an employer implements a drug-free workplace program substantially in accordance with the requirements set out in the workers' compensation law, the employer will qualify for certification for a five-percent premium discount under the employer's workers' compensation insurance policy (Sec. 25-5-332(a)).

Exceptions

Individual self-insurers or members of group self-insurance funds are not covered by Alabama's drug-free workplace program law (Sec. 25-5-331(7)).

Procedures

Collection of specimen

All specimen collection and testing must be performed in accordance with the following procedures (Sec. 25-5-335(c)):

(1) A specimen must be collected with due regard to the privacy of the individual providing the specimen, and in a manner reasonably calculated to prevent substitution or contamination of the specimen.

(2) Specimen collection must be documented, and the documentation procedures must include all of the following: (a) labeling of specimen containers so as to reasonably preclude the likelihood of erroneous identification of test results; (b) an opportunity for the employee or job applicant to record any information he or she considers relevant to the test, including identification of currently or recently used prescription or nonprescription medication or other relevant medical information. The providing of information cannot preclude the administration of the test, but must be taken into account in interpreting any positive confirmed results.

(3) Specimen collection, storage, and transportation to the testing site must be performed in a manner that reasonably precludes specimen contamination or adulteration.

(4) Each initial and confirmation test conducted, not including the taking or collecting of a specimen to be tested, must be conducted by a laboratory.

(5) A specimen for a test may be taken or collected by any of the following persons: (a) a physician, a physician's assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner, or a certified paramedic who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment; or (b) a qualified person certified or employed by a laboratory certified by the National Institute on Drug Abuse, the College of American Pathologists, or the Alabama Department of Human Resources.

(6) Within five working days after receipt of a positive confirmed test result from the laboratory, an employer must inform the employee or job applicant in writing of the positive test result, the consequences of the results, and the options available to the employee or job applicant.

(7) The employer must provide to the employee or job applicant, upon request, a copy of the test results.

(8) An initial test having a positive result must be verified by a confirmation test.

(9) An employer who performs drug testing or specimen collection must use chain-of-custody procedures to ensure proper recordkeeping, handling, labeling, and identification of all specimens to be tested.

(10) An employer must pay the cost of all drug tests, initial and confirmation, that the employer requires of employees.

(11) An employee or job applicant must pay the cost of any additional tests not required by the employer.

(12) If testing is conducted based on reasonable suspicion, the employer must promptly detail in writing the circumstances that formed the basis of the determination that reasonable suspicion existed to warrant the testing. A copy of this documentation must be given to the employee upon request and the original documentation must be kept confidential by the employer as provided in Alabama's drug-free workplace program law and retained by the employer for at least one year.

What the employer must do

Drug-free workplace program

Although such programs are not mandatory, employers may elect to have a drug-free workplace program, and doing so may qualify the employer for a five-percent premium discount on workers' compensation insurance (Sec. 25-5-332(a)).

Notice of testing. --Prior to testing, all employees and job applicants for employment must be given a onetime notice of testing. In addition, all employees must be given a written policy statement from the employer (Sec. 25-5-334(a)).

Newly implemented programs. --An employer not having a substance abuse testing program in effect on July 1, 1996, must ensure that at least 60 days elapse between a general one-time notice to all employees that a substance abuse testing program is being implemented and the beginning of the actual testing. An employer having a substance abuse testing program in place prior to July 1, 1996, will not be required to provide a 60-day notice period (Sec. 25-5-334(b)).

Insurance discount. --If an employer implements a drug-free workplace program substantially in accordance with Alabama's drug-free workplace program law, the employer will qualify for certification for a five-percent premium discount under the employer's workers' compensation insurance policy (Sec. 25-5-332(a)).

A drug-free workplace program must contain all the following elements (Sec. 25-5-333(a)):

(1) a written policy statement;

(2) substance abuse testing;

(3) resources of employee assistance providers;

(4) employee education; and

(5) supervisor training.

In addition, a drug-free workplace program must be implemented in compliance with the confidentiality standards provided in Alabama's drug-free workplace program law (Sec. 25-5-333(b)).

Vacancy announcements. --An employer must include notice of substance abuse testing on vacancy announcements for those positions for which testing is required (Sec. 25-5-334(c)).

Notice in the workplace. --A notice of the employer's substance abuse testing policy must also be posted in an appropriate and conspicuous location on the employer's premises (Sec. 25-5-334(c)).

Copies. --Copies of the employer's substance abuse testing policy must be made available for inspection by the employees or job applicants of the employer during regular business hours in the employer's personnel office or other suitable locations (Sec. 25-5-334(c)).

Compliance. --All testing conducted by an employer must be in conformity with the standards and procedures established in Alabama's drug-free workplace program law and all applicable rules adopted by the State Department of Industrial Relations (Sec. 25-5-334(c)).

Drug testing not required. --Notwithstanding everything mentioned in Sec. 25-5-334(c) above, an employer does not have a legal duty under Alabama's drug-free workplace program law to request an employee or job applicant to undergo testing (Sec. 25-5-334(c)).

When to test

An employer is required to conduct the following types of tests in order to qualify for the workers' compensation insurance premium discounts provided under Alabama's drug-free workplace program law (Sec. 25-5-335(a)):

(1) An employer can require job applicants to submit to a substance abuse test after extending an offer of employment. Limited testing of job applicants by an employer will qualify under Alabama's drug-free workplace program law if the testing is conducted on the basis of reasonable classifications of job positions.

(2) An employer can require an employee to submit to reasonable suspicion testing.

(3) An employer can require an employee to submit to a substance abuse test if the test is conducted as part of a routinely scheduled employee fitness-for-duty medical examination that is part of the employer's established policy or that is scheduled routinely for all members of an employment classification or group.

(4) If the employee, in the course of employment, enters an employee assistance program or a rehabilitation program as the result of a positive test, the employer can require the employee to submit to a substance abuse test as a follow-up to the program. Notwithstanding the foregoing, if an employee voluntarily entered the program, follow-up testing cannot be required. If follow-up testing is conducted, the frequency of the testing must be at least once a year for a two-year period after completion of the program, and advance notice of the testing date is not to be given to the employee.

(5) If the employee has caused or contributed to an on-the-job injury that resulted in a loss of work time, the employer must require the employee to submit to a substance abuse test.

Random drug testing. --Alabama's drug-free workplace program law does not prohibit a private employer from conducting random testing or other lawful testing of employees (Sec. 25-5-335(b)).

Employee Assistance Program

If an employer has an employee assistance program, the employer must inform the employee of the benefits and services of the program. In addition, the employer must provide the employee with notice of the policies and procedures regarding access to and utilization of the program (Sec. 25-5-336(a)).

If an employer does not have an employee assistance program, the employer must maintain a resource file of providers of other employee assistance, including drug and alcohol abuse programs, mental health providers, and other persons, entities, or organizations available to assist employees with personal or behavioral problems, and must notify the employee of the availability of the resource file. In addition, the employer must post in a conspicuous place a listing of providers of employee assistance in the area (Sec. 25-5-336(b)).

Education programs

Employers must provide all employees with a general, semiannual education program on substance abuse and its specific effects in the workplace (Sec. 25-5-337(a)).

Supervisor training

In addition to the education program provided for employees, an employer must provide all supervisory personnel with a minimum of two hours of supervisor training (Sec. 25-5-337(b)).

Employer rights and protections

Physician-patient relationship. --No physician-patient relationship is created between an employee or job applicant and an employer, medical review officer, or any person performing or evaluating a drug test solely by the establishment, implementation, or administration of a drug-testing program (Sec. 25-5-338(a)).

Work rules. --Alabama's drug-free workplace program law cannot be construed to prevent an employer from establishing reasonable work rules related to employee possession, use, sale, or solicitation of drugs, including convictions for drug-related offenses, and taking action based upon a violation of any of those rules (Sec. 25-5-338(b)).

Retroactivity; Right to test/implement programs. --Alabama's drug-free workplace program law cannot be construed to operate retroactively. Further, nothing abrogates the right of an employer under state or federal law to conduct drug tests, or implement employee drug-testing programs. Notwithstanding the foregoing, only those programs that meet the criteria outlined under Alabama's drug-free workplace program law qualify for reduced workers' compensation insurance premiums (Sec. 25-5-338(c)).

Toxic chemical exposure in the workplace. --Alabama's drug-free workplace program law cannot be construed to prohibit an employer from conducting medical screening or other tests required, permitted, or not disallowed by any statute, rule, or regulation for the purpose of monitoring exposure of employees to toxic or other unhealthy materials in the workplace or in the performance of job responsibilities. The screening or tests must be limited to the specific materials expressly identified in the statute, rule, or regulation, unless prior written consent of the employee is obtained for other tests (Sec. 25-5-338(d)).

Failure to establish program. --No cause of action can arise in favor of any person based upon the failure of an employer to establish or conduct a program or policy for substance abuse testing (Sec. 25-5-338(e)).

Privacy

All information, interviews, reports, statements, memoranda, and test results, written or otherwise, received by the employer through a substance abuse testing program are confidential communications, but may be used or received in evidence, obtained in discovery, or disclosed in any civil or administrative proceeding, except as provided in Sec. 25-5-339(c) (see below) (Sec. 25-5-339(a)).

Consent form. --Employers, laboratories, medical review officers, employee assistance programs, drug or alcohol rehabilitation programs, and their agents who receive or have access to information concerning test results must keep all information confidential. Release of such information under any other circumstances must be solely pursuant to a written consent form signed voluntarily by the person tested, unless the release is compelled by an agency of the state or a court of competent jurisdiction or unless deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding. The consent form must contain at a minimum all of the following (Sec. 25-5-339(b))

(1) name of the person authorized to obtain the information;

(2) purpose of the disclosure;

(3) precise information to be disclosed;

(4) duration of the consent; and

(5) signature of the person authorizing release of the information.

Criminal proceedings. --Information on test results cannot be released or used in any criminal proceeding against the employee or job applicant. Release of information contrary to this subsection will be inadmissible as evidence in the criminal proceeding (Sec. 25-5-339(c)).

Civil or administrative matters. --Alabama's drug-free workplace program law cannot be construed to prohibit an employer or laboratory conducting a test from having access to employee test information when consulting with legal counsel when the information is relevant to its defense in a civil or administrative matter (Sec. 25-5-339(d)).

Notice

Notice of drug testing

Prior to testing, all employees and job applicants for employment must be given a one time only notice of testing (Sec. 25-5-334(a)).

An employer not having a substance abuse testing program in effect on July 1, 1996, must ensure that at least 60 days elapse between a general one-time notice to all employees that a substance abuse testing program is being implemented and the beginning of the actual testing. An employer having a substance abuse testing program in place prior to July 1, 1996, will not be required to provide a 60-day notice period (Sec. 25-5-334(b)).

Vacancy announcements. --An employer must include notice of substance abuse testing on vacancy announcements for those positions for which testing is required (Sec. 25-5-334(c)).

Posting notice. --A notice of the employer's substance abuse testing policy must be posted in an appropriate and conspicuous location on the employer's premises (Sec. 25-5-334(c)).

Employee assistance program

If an employer has an employee assistance program, the employer must inform the employee of the benefits and services of the program. In addition, the employer must provide the employee with notice of the policies and procedures regarding access to and utilization of the program (Sec. 25-5-336(a)).

Resource file; list of providers. --If an employer does not have an employee assistance program, the employer must maintain a resource file of providers of other employee assistance, including drug and alcohol abuse programs, mental health providers, and other persons, entities, or organizations available to assist employees with personal or behavioral problems, and must notify the employee of the availability of the resource file. In addition, the employer must post in a conspicuous place a listing of providers of employee assistance in the area (Sec. 25-5-336(b)).

Deadlines

An employer not having a substance abuse testing program in effect on July 1, 1996, must ensure that at least 60 days elapse between a general onetime notice to all employees that a substance abuse testing program is being implemented and the beginning of the actual testing. An employer having a substance abuse testing program in place prior to July 1, 1996, will not be required to provide a 60-day notice period (Sec. 25-5-334(b)).

Policies

The employer's written policy statement must contain all of the following information (Sec. 25-5-334(a)):

(1) a general statement of the employer's policy on employee substance abuse that identifies (a) the types of testing an employee or job applicant may be required to submit to, including reasonable suspicion or other basis used to determine when the testing will be required; and (b) the actions the employer may take against an employee or job applicant on the basis of a positive confirmed test result;

(2) a statement advising an employee or job applicant of the existence of Alabama's drug-free workplace program law;

(3) a general statement concerning confidentiality;

(4) the consequences of refusing to submit to a drug test;

(5) a statement advising an employee of the employee assistance program, if the employer offers the program, or advising the employee of the employer's resource file of assistance programs and other persons, entities, or organizations designed to assist employees with personal or behavioral problems;

(6) a statement that an employee or job applicant who receives a positive confirmed test result may contest or explain the result to the employer within five working days after written notification of the positive test result; and

(7) a statement informing an employee of the provisions of the federal Drug-Free Workplace Act, if applicable to the employer.

Testing

Collection of specimen

All specimen collection and testing must be performed in accordance with the following procedures (Sec. 25-5-335(c)):

(1) A specimen must be collected with due regard to the privacy of the individual providing the specimen, and in a manner reasonably calculated to prevent substitution or contamination of the specimen.

(2) Specimen collection must be documented, and the documentation procedures must include all of the following: (a) labeling of specimen containers so as to reasonably preclude the likelihood of erroneous identification of test results; (b) an opportunity for the employee or job applicant to record any information he or she considers relevant to the test, including identification of currently or recently used prescription or nonprescription medication or other relevant medical information. The providing of information cannot preclude the administration of the test, but must be taken into account in interpreting any positive confirmed results.

(3) Specimen collection, storage, and transportation to the testing site must be performed in a manner that reasonably precludes specimen contamination or adulteration.

(4) Each initial and confirmation test conducted, not including the taking or collecting of a specimen to be tested, must be conducted by a laboratory.

(5) A specimen for a test may be taken or collected by any of the following persons: (a) a physician, a physician's assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner, or a certified paramedic who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment; or (b) a qualified person certified or employed by a laboratory certified by the National Institute on Drug Abuse, the College of American Pathologists, or the Alabama Department of Human Resources.

(6) Within five working days after receipt of a positive confirmed test result from the laboratory, an employer must inform the employee or job applicant in writing of the positive test result, the consequences of the results, and the options available to the employee or job applicant.

(7) The employer must provide to the employee or job applicant, upon request, a copy of the test results.

(8) An initial test having a positive result must be verified by a confirmation test.

(9) An employer who performs drug testing or specimen collection must use chain-of-custody procedures to ensure proper recordkeeping, handling, labeling, and identification of all specimens to be tested.

(10) An employer must pay the cost of all drug tests, initial and confirmation, that the employer requires of employees.

(11) An employee or job applicant must pay the cost of any additional tests not required by the employer.

(12) If testing is conducted based on reasonable suspicion, the employer must promptly detail in writing the circumstances that formed the basis of the determination that reasonable suspicion existed to warrant the testing. A copy of this documentation must be given to the employee upon request and the original documentation must be kept confidential by the employer as provided in Alabama's drug-free workplace program law and retained by the employer for at least one year.

Laboratory standards

No laboratory may analyze initial or confirmation drug specimens unless (Sec. 25-5-335(d)(1)):

.a. The laboratory is approved by the National Institute on Drug Abuse or the College of American Pathologists.

.b. The laboratory has written procedures to ensure the chain of custody.

.c. The laboratory follows proper quality control procedures including, but not limited to:

(1) The use of internal quality controls, including the use of samples of known concentrations that are used to check the performance and calibration of testing equipment, and periodic use of blind samples for overall accuracy.

(2) An internal review and certification process for drug test results, conducted by a person qualified to perform that function in the testing laboratory.

(3) Security measures implemented by the testing laboratory to preclude adulteration of specimens and drug test results.

(4) Other necessary and proper actions taken to ensure reliable and accurate drug test results.

Laboratory reports

A laboratory must disclose to the employer a written test result report within seven working days after receipt of the sample. All laboratory reports of a substance abuse test result must, at a minimum, state all of the following (Sec. 25-5-335(d)(2)(a)):

(1) the name and address of the laboratory that performed the test and the positive identification of the person tested.

(2) positive results on confirmation tests only, or negative results, as applicable.

(3) a list of the drugs for which the drug analyses were conducted.

(4) the type of tests conducted for both initial and confirmation tests and the minimum cut-off levels of the tests.

No report may disclose the presence or absence of any drug other than a specific drug and its metabolites listed pursuant to Alabama's drug-free workplace program law (Sec. 25-5-335(d)(2)(b)).

Test results

Interpretation. --Laboratories must provide technical assistance to the employer, employee, or job applicant for the purpose of interpreting any positive confirmed test results that could have been caused by prescription or nonprescription medication taken by the employee or job applicant (Sec. 25-5-335(d)(3)).

Negative results. --If an initial drug test is negative, the employer may seek a confirmation test. Only those laboratories described in Sec. 25-5-335(d)(1) may conduct confirmation drug tests (Sec. 25-5-335(e)).

Positive results. --All positive initial tests must be confirmed using the gas chromatography/mass spectrometry (GC/MC) method or an equivalent or more accurate scientifically accepted method approved by the National Institute on Drug Abuse as the technology becomes available in a cost-effective form (Sec. 25-5-335(f)).

Training

Employee education program

An employer must provide all employees with a general, semiannual education program on substance abuse and its specific effects on the workplace. An education program for a minimum of one hour should include, but is not limited to, the following information (Sec. 25-5-337(a)):

(1) the explanation of the disease model of addiction for alcohol and drugs.

(2) the effects and dangers of the commonly abused substances in the workplace.

(3) the policies of the company and procedures regarding substance abuse in the workplace and how employees who wish to obtain substance abuse treatment can do so.

Supervisor training

In addition to an education program, an employer must provide all supervisory personnel with a minimum of two hours of supervisor training, which includes, but is not limited to, the following information (Sec. 25-5-337(b)):

(1) how to recognize signs of employee substance abuse;

(2) how to document and collaborate signs of employee substance abuse; and

(3) how to refer substance abusing employees to the proper treatment providers.

Enforcement

Rulemaking

The Department of Industrial Relations, Workers' Compensation Division, has the authority to promulgate by rule or regulation procedures and forms for the certification of employers who establish and maintain a drug-free workplace in compliance with Alabama's drug-free workplace program law (Sec. 25-5-340).

Who to contact

Contact the Industrial Relations Department at 649 Monroe Street, Montgomery, AL 36131. Telephone: (334) 242-8618. Fax: (334) 242-1787. TDD Number: (334) 242-8608.

Record Keeping

Employee assistance

Resource file. --If an employer does not have an employee assistance program, the employer must maintain a resource file of providers of other employee assistance, including drug and alcohol abuse programs, mental health providers, and other persons, entities, or organizations available to assist employees with personal or behavioral problems, and must notify the employee of the availability of the resource file. In addition, the employer must post in a conspicuous place a listing of providers of employee assistance in the area (Sec. 25-5-336(b)).

Posting

Notice of policy

A notice of the employer's substance abuse testing policy must be posted in an appropriate and conspicuous location on the employer's premises (Sec. 25-5-334(c)).

Employee assistance

List of providers. --If an employer does not have an employee assistance program, the employer must post in a conspicuous place a listing of providers of employee assistance in the area (Sec. 25-5-336(b)).