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Oklahoma vs. Federal Drug Testing Standards

Oklahoma Employment Law Letter - September 1, 2008

By Charlie Plumb

More Oklahoma employers are adopting drug and alcohol testing programs for their workforce.  Some employees may be covered by federal regulations, while other employees are subject to Oklahoma’s own drug and alcohol testing law.  Which set of laws apply to your employees?   

History of employee drug testing
In 1986, President Reagan approved the Drug Free Workplace Program, which required periodic and reasonable suspicion drug testing of federal employees in sensitive positions.  In 1988 and again in 1991, the Federal Department of Transportation announced regulations requiring drug and alcohol testing of employees in the aviation, trucking, mass transit, pipeline, and other transportation industries.  The testing required by these federal laws applied procedural safeguards aimed at protecting individuals’ privacy and ensuring the accuracy of the testing and test results.

After the adoption of these federal drug and alcohol testing guidelines, employers not covered by these federal laws began putting into place drug testing programs for their employees, in an effort to address absenteeism, accidents, reduced productivity, increased healthcare costs, and other workplace problems.  At first, these testing procedures did not have the protections offered by the testing covered by the federal laws.  In response, many states began adopting their own versions of laws, which required procedural safeguards when employers tested their workforce for drugs and alcohol.  Presently, 23 states have drug and alcohol testing statutes for employers.  Oklahoma’s Standards for Workplace Drug and Alcohol Testing Act went into effect during 1993.  Although mirroring some of the federal laws’ procedural safeguards, Oklahoma’s Testing Act includes some unique provisions.  For example, unlike the federal laws, the Oklahoma Testing Act permits an employee to sue the employer, if they fail to follow the guidelines required by Oklahoma’s testing law.

Truck overturns = drug test
Clyde Williams worked for United Parcel Service and drove a route from Lawton to Oklahoma City.  When his trailer swerved off the highway and onto the shoulder, the soft soil caused his tractor trailer to overturn.  Although he was not cited by the Oklahoma Highway Patrol, his UPS supervisors required him to take a urinalysis drug test based upon “reasonable suspicion.”  The basis for the supervisors’ supervision was the “redness of Williams’ eyes.” 

Williams’ urine sample tested positive, and UPS discharged him.  Williams filed a lawsuit against UPS, complaining his employer had not followed the guidelines required by Oklahoma’s testing act.  Williams sued UPS for reinstatement to his former job, as well as lost wages and benefits.

Federal law trumps Oklahoma law
The Oklahoma Testing Act specifically states:  “Drug or alcohol testing required by and conducted pursuant to federal law regulation shall be exempt from the provisions of this [A]ct” Okla. Stat. tit. 40 § 533(C).  The purpose of this particular part of Oklahoma’s law was to avoid any confusion or overlap between state and federal drug and alcohol testing laws.  It was also intended to offer employers and employees clear notice which rules would apply to a particular testing program. 

In the case of Williams and UPS, there was no question the reasonable suspicion drug testing of Williams after his truck overturned between Lawton and Oklahoma City was covered by the Federal Department of Transportation regulation.  That meant Williams could not sue his former employer under the Oklahoma Testing Act, when it came to his firing for a positive test.  Williams v. United Parcel Serv. Inc., Case No. 07-6035 (10th Cir. 6/4/08)

Know which law applies to you
If you are an Oklahoma employer who uses a drug and alcohol testing program, first determine whether your employees are covered by federal regulations or Oklahoma’s testing law, when it comes to those procedures.  Next, make sure your particular process satisfies whichever set of rules apply – federal or Oklahoma regulations.  Keep in mind it is possible that if you are in a transportation or pipeline industries, and your employees are in safety sensitive job classifications, some may be covered by the federal laws, while the remainder of your workforce is subject to Oklahoma’s testing law.

The author may be reached at charlie.plumb@mcafeetaft.com