Amendments made to Oklahoma’s workplace drug- and alcohol-testing law

By Michael Lauderdale

On May 8, the Oklahoma Legislature’s amendments to the Oklahoma Standards for Workplace Drug and Alcohol Testing Act were signed into law. Because the law was passed as an “emergency measure,” the changes to the Act, summarized below, took effect immediately.

Employee challenges to positive test results

Under the newly enacted amendments, all testing still must be conducted in accordance with the Standards for Workplace Drug and Alcohol Testing Act. And, in accordance with the law before it was amended, an employee discharged for refusing to take a test or failing a test isn’t entitled to unemployment benefits. The amended Act includes three significant changes:

  1. If an employee challenges a positive test, he has the burden of proving a breach in the chain of custody. If requested by the employee making the challenge, the employer must provide the chain of custody documentation.
  2. If a claimant for unemployment compensation fails a drug test and fails to request a confirmation test, he is not eligible for benefits.
  3. An employer is required to provide a written report of the testing results, which is considered minimally sufficient evidence of the administration and results of the test. If the test result is challenged, the report is acceptable as evidence with the chain of custody of the sample properly documented.

While the amended law states that an employee cannot obtain benefits absent a request for a confirmation test, it is still 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 wasn’t requested. Thus, you should be prepared to prove your case by establishing compliance with the Act.

The term “written report” is not defined. The language of the Act simply states that drug test results can be provided. However, we believe that the standard form normally provided by a certified lab will constitute a report (as opposed to an employer-created document that merely states an employee tested positive).

Finally, you should be prepared to establish chain of custody and ensure that the lab (or internal department if a lab isn’t used) documents the chain of custody. Thus, when contesting an unemployment benefits claim based on a failed drug test, you should be prepared to present the following:

  1. A copy of your drug-testing policy and proof of notice to the employee;
  2. The written report reflecting the drug test results; and
  3. Chain of custody documentation.

Confirmation of Breathalyzer and single-use tests

The legislature amended Section 552 of the Act 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 simply a second test that confirms the previous result. If you use a single-use test kit, a confirmation test is a second test confirmed by a testing facility.

As a result of the change, if an employee requests confirmation of a Breathalyzer test, the employer or third party merely administers a second test. If an employee requests confirmation of a single-use test, it appears that he would be 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.

Reassignment testing; postaccident testing for property damage

Under the new law, you have the right to request or require testing of any employee who transfers or is reassigned to a new position or job. Additionally, the legislature amended Section 554(3) of the Act to clarify the circumstances under which an employer may require testing of an employee who damaged property. As amended, for the employer to be able to require testing, the property (or equipment) must have been damaged by the employee while at work.

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 didn’t address the issue of employees who return to duty following a leave of absence. As amended, the law now specifically allows you to request or require testing of 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 in an unemployment claim hearing. Following a previous amendment to the Act during the last legislative session, the OESC took the position that for drug-testing records to be admitted as evidence in an unemployment claims hearing, the employee must have executed a release. If the former employee didn’t want the test results admitted, he needed only to refuse to give permission for the results to be used.

The OESC’s interpretation forced drug-testing business owners between a rock and a hard place. If an employer terminated an employee for using illegal drugs, the employee received taxpayer-funded unemployment benefits, paid in part by the employer’s increased tax rate. If the employer chose to avoid increased taxes by retaining the employee after a positive test, then it had to deal with the safety and productivity issues that come with employing a drug user.

The recently amended Act relieves employers of this no-win situation. The law now clarifies that drug-testing records are still subject to confidentiality, but an exception exists for the employer, the employee, and the review officer. However, the employer may release the records for any of the following reasons:

  1. Either the employer or the employee is named as a party in a court case or agency proceeding;
  2. To comply with a valid judicial or administrative order; or
  3. When an agent of the employer needs the information to comply with the Act.

Burden of proof requirements

Under the old law, Section 560(c) stated that for an employer to prove employee misconduct, it needed only provide (1) proof of a policy and (2) either the employee’s refusal to take a drug test or a positive test result. The amended law removed that section entirely. The burden of proof requirements are now set forth in Section 2-406.

The next step for employers

For employers that enacted a drug- and alcohol-testing policy based on the previous Act, we strongly recommend that you contact your legal counsel to have the policy revised based on the key areas of revision discussed above. Further, if you previously decided not to conduct drug testing based on the OESC’s interpretation of the old Act, you may want to revisit your procedures now that employees who are terminated for testing positive cannot unilaterally refuse admission of their positive test.