Drug Testing Do-Over

Drug Testing Do-over: A Brief Overview of the Recent Changes to Oklahoma’s Workplace Drug & Alcohol Testing Act

Alcohol and drug testing is a bad deal for both employees and employers: no employee likes urinating in a cup and no employer likes spending the time and money to test employees. But the Oklahoma Legislature has now made it a little easier and less expensive for employers to test applicants and employees.

Recently, Governor Mary Fallin signed a bill overhauling the Standards for Workplace Drug and Alcohol Testing Act to make the law more employer friendly. And employers should be aware of these new changes so they can take advantage of the changes when the new law goes into effect on November 1, 2011.

One of the most significant changes in the new drug testing law is that the legislature completely abolished any criminal liability an employer might face for violating the law. As far as civil liability, the legislature created disincentives for applicants or employees to sue their employers for violations of the law because the statute of limitations to sue is now only one year and a successful defendant-employer may now collect costs and attorney fees.

The new law also includes great cost saving measures. For example, in order to drug test employees, employers are no longer required to provide employees with an Employee Assistance Program. Also, the new law cuts through bothersome red tape requiring employers to have the FDA or NHSTA approve “on-site” testing facilities and procedures.

Governor Fallin and the legislature also gave employers more freedom to decide what employees to drug test, when to drug test employees, and how to deal with employees that test positive. Employers may now test independent contractors and employees of independent contractors. Moreover, employers no longer need to jump through hoops to find “reasonable suspicion” to test employees. Now, they only need to have a “reasonable belief” that an employee may be abusing drugs or alcohol, a much lower legal standard.

With these sweeping changes, however, comes some slight risk. Employers should revise any existing drug testing policy to make sure it complies with the new standards. If an employer fails to revise an existing policy, they will likely be stuck following the more costly procedures. In fact, now is a great time for employers to draft a new drug testing policy. Of course, the attorneys at Savage, O’Donnell, Affeldt, Weintraub & Johnson stand ready and willing to help employers ensure all their drug testing and personnel policies are up to speed with the current law. If you have any questions about the details of the new law, please feel free to contact us.

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