Drug Testing?

Thinking about doing drug testing or expanding existing testing? Maine law contains strict rules about testing – in fact, you can’t do drug testing in Maine without state approval. The Central Maine Human Resources Association will be addressing the issue of drug impairment in the workplace on February 20 (go to www.cmhra.org), a helpful first step if considering testing and a critical step if already performing testing.

As for thinking about testing for the first time or adding on different types of testing, there is a statute (law passed by the folks up in Augusta) and also regulations (created by the agencies involved (Maine Department of Labor (“DOL”) and DHHS). To look at the law itself, go here: http://www.mainelegislature.org/legis/statutes/26/title26sec683.html The Maine DOL has regulations on what is necessary in order to get a testing policy approved and how it must be carried out. Go here for those rules: http://maine.gov/labor/labor_laws/substance_abuse_testing/index.html And, because there are just not enough rules around this, the Department of Health and Human Services has prescribed rules and regulations for programs and laboratories testing employees and applicants for substances of abuse. The rules are intended to assure that employees and applicants receive reliable and accurate testing, and that privacy rights are protected.

For Maine employers with federally covered employees, if they have any employees who are subject to a federally mandated drug-and-alcohol testing program working in Maine, that employer may expand the federal testing pool to cover all employees and forego a policy with the State. So, if you have truck drivers for example, think about putting all of them under the program with the feds.

The process of creating a drug testing program can be daunting but the DOL does have a vast amount of information that employers can just copy and adjust to their own needs, including model policies. The Department has developed model testing policies, incorporating requirements from the Substance Abuse Testing statutes as well as the pertinent Department of Labor rules and Department of Health and Human Services rules.

Some of the areas that are covered by the statute include:

Testing procedures: Procedures are different for large and small employers. The determining point is the number of full time employees. Employers with 20 or more full time employees have to meet more rigid requirements than do employers with less than 20 employees. One requirement that has been under debate is that employers with more than 20 full-time employees have an employee assistance program (“EAP”). Those are not cheap so there has been some effort to try to remove that requirement. Call your state representative about that issue; it is a requirement under Maine’s drug testing law.

Written policies: A written policy that complies with this state statutory scheme is required of all employers before they can undertake substance abuse testing programs. These programs are complicated and they require, among other things, an employee committee to help develop the policy. While the first reaction may be “are you serious?,” involving employees probably helps boost morale and get employees engaged in helping with maintaining the safety of their own workplace. Better when the employees help impose new policies and not just management.

Notification of test results: Notification of test results must be provided to the employee and upon request the employee must be provided with a written copy of the laboratory report. These notice requirements also allow for employees to refute the test results. Within 3 working days after notice of a confirmed positive test result, the employee or applicant may submit information to the employer explaining or contesting the results.

Costs: The employer must bear all costs of substance abuse tests which the employer requires. Should an employee request a subsequent test, the employer must pay if the tests come out negative and the employee must pay if there is a positive result.

Limitation of use of tests: The use of these tests is only to determine uses of substances that are likely to cause impairment of the employee. They cannot be used for any other purposes.

Testing of applicants: The testing of applicants for employment can only be done after an applicant has been offered employment with the employer or the applicant has been placed on a list of eligible applicants from which employees will be selected.

Testing of existing employees: Any testing of existing employees is limited to cases where the employer has probable cause to test the employee. Probable cause is defined in the statute.

Random drug testing: Employers can also randomly test employees under certain conditions:

(1)   The employer and employee have bargained in a collective bargaining agreement for random testing;

(2)   The employee works in a position the nature of which would create an unreasonable threat to the health and/or safety of the public if the employee were to use drugs;

(3)   The employee is undergoing rehabilitation or treatment required by the rehabilitation treatment provider. (The results of such a substance abuse test cannot be provided to the employer.)

State approval: All written policies for substance abuse testing must be reviewed and approved by the Department of Labor.

The actions that employers are allowed to take based on a positive drug result are numerous. In general, there is a requirement that the employer offer an employee the opportunity to participate in a rehabilitation program. Employers with 20 or more employees must pay half of the costs of such treatment. Employers with less than 20 full time employees are not required to pay any of the costs of the rehabilitation program. During the time that an employee is involved in a rehabilitation program, the employer cannot take any action detrimental to the employee’s employment status.

Hope to see you on February 20!

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Bryan Dench, Amy Dieterich, Jordan Payne Hay, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters. You can contact us at 207.784.3200. Skelton Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.