By Michael Lauderdale
As noted in this recent employment law alert, the Oklahoma Standards for Workplace Drug and Alcohol Testing Act (the “Act”) was amended and signed into law, effective May 8, 2012. The following is a summary of the key changes to the Act and what they mean for Oklahoma employers. Remember that this law was passed as an “emergency measure,” meaning it became effective immediately.
Employee challenges to positive test results
Under the new law, all testing still must be conducted in accordance with the Standards for Workplace Drug and Alcohol Testing Act. And as in accordance with the prior law, an employee discharged for refusing to take a test or failing a test is not entitled to unemployment benefits.
40 Oklahoma Statute, Section 2-406.1, as amended, includes three significant changes:
- If an employee challenges a positive test, he/she has the burden to prove a breach in the chain of custody. If requested by the employee making the challenge, an employer must provide the chain of custody documentation.
- If a claimant fails to request a confirmation test, the claimant shall not be eligible for benefits.
- An employer is required to provide a written report of the results which shall be prima facie evidence of the administration and results of the test. If the test result is challenged, the written report of the test results shall be acceptable for presentation as evidence WITH the chain of custody of the sample properly documented.
Analysis and concerns
First, while the amended law states that an employee cannot obtain benefits absent a request for a confirmation test, it still is possible that a hearing officer or the Oklahoma Employment Security Commission (OESC) may allow an employee to challenge the results even if a confirmation test was not requested. Thus, an employer should be prepared to prove its case by establishing compliance with the Act.
Second, the term “written report” is not defined. The language used merely says drug test results can be provided. However, we believe that the standard form normally provided by a certified lab will constitute a report rather than a document that merely states the employee tested positive.
Finally, an employer should be prepared to establish chain of custody and should ensure that its lab (or internally, if a lab is not used) documents the chain of custody.
Thus, when contesting a claim for unemployment benefits for failing a drug test, an employer should be prepared to present the following:
- A copy of its drug testing policy and proof of notice to the employee,
- The report showing the drug test results, and
- Chain of custody documentation.
Confirmations for Breathalyzer and Single-Use Tests
Section 552 was amended to clarify how a confirmation test is obtained for breathalyzers and single-use kits. Under the new law, when a breathalyzer test is used, a confirmation test is a second sample test that confirms the prior result. If an employer uses a single-use test kit, a confirmation test is a second test confirmed by a testing facility.
As a result of this change, if an employee requests confirmation after a breathalyzer test, the employer or third party merely administers a second test. If an employee requests a confirmation test after a single-use test, it would appear that the employee is then sent to a testing facility. The amended law also deleted language from Section 557(b), which originally prohibited an employer from terminating an employee absent a confirmation test following a failed breathalyzer test.
Under the new law, an employer now has the right to request or require testing of any employee who transfers or is reassigned to a new position or job.
Post-accident testing for property damage
Section 554(3) was amended to clarify under what circumstances an employer could require testing of an employee who damaged property. As amended, the property (or equipment) must have been damaged by the employee while at work in order for the employer to be able to require testing.
Testing following a return to duty
While the old law allowed employers to request or require employees to undergo drug or alcohol testing as part of “scheduled, periodic testing,” such as routinely scheduled employee fitness-for-duty medical exams, it did not address the issue of employees who return to duty following a leave of absence. As amended, the law now specifically allows employers to request or require testing from anyone who returns to work following a leave of absence.
Release of testing records
Section 560, as amended, addresses the OESC’s recent, misguided requirement of a release before admitting drug testing records as evidence during an unemployment claim hearing. After the prior amendment to the Act from the last legislative session, the OESC had taken the position that in order for drug testing records to be admitted as evidence during an unemployment claims hearing, the employee must have executed a release. This is no longer the case.
Drug testing records are still subject to confidentiality except as to the employer, employee and review officer. However, such records may be released by the employer for any of the following purposes: 1) If EITHER the employer or employee are named parties to a court case or agency proceeding, 2) to comply with a valid judicial or administrative order, or 3) to provide to agents of the employer who need the information to comply with the Act.
Burden of proof requirements
Under the old law, Section 560(c) stated that in order for an employer to prove employee misconduct, it needed only provide proof of a policy and either the employee’s refusal to take a test or a positive test result. The amended law removed this entire section. The burden of proof requirements are now set forth in Section 2-406.
What Next for Employers?
For those employers that enacted a policy based upon the previous Act, it is our strong recommendation that you contact your legal counsel to have the policy revised based on the key areas of revision noted above.
This law update has been provided for information. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this newsletter without seeking professional counsel.