By Andrew Current and Adam Hall
Note: This article is provided for educational purposes only and should not be relied upon as legal advice. The reader retains full responsibility to ensure compliance with all applicable laws relative to drug testing.
There are many questions that come up before drug testing even begins. Who can be tested? Under what circumstance can testing be conducted? What types of testing are permitted? These questions and others occupy much of the drug testing discussion because they are the most obvious and initially the most important to resolve. However, they are not the only issues often addressed by state drug testing laws. One such issue is how a company must notify a donor of test results.
Fortunately, the issue of notification of test results is a relatively simple issue to address. Either a state’s law—mandatory or voluntary—mentions results notification requirements or it doesn’t. Most other laws that can affect workplace drug testing rarely touch on results notification; however, it is wise to always check workers’ and unemployment compensation regulations just in case.
In this article we will focus on results reporting requirements placed upon employers and look at three categories to simplify our report: 1) states with laws that require notification of results, 2) states with laws that do not require notification of results, and 3) states without any drug testing law.
States with Drug Testing Laws that Require Notification of Test Results
In all, there are 14 states (total excludes industry-specific laws, e.g., Illinois’s Public Works law) with some variation of drug testing law which includes a requirement of notification of test results. In these states there are generally four things to look for: 1) Must an employer report to the employees, candidates, or both? 2) Must an employer report positive results, negative results, or both? 3) What is the time window within which an employer must report results? and 4) Must the result be reported in writing? Here are three examples:
- Alabama requires an employer to notify employees and candidates in writing of positive results (negative not required unless specifically requested by the individual) within 5 days of receipt of the results from the laboratory.
- Minnesota requires employers to notify employees and candidates in writing of both positive and negative results within 3 days of receipt of the results from a laboratory.
- Maine requires employers to notify employees and candidates of both positive and negative results, but they need not do so in writing unless a donor requests a copy.
Keep in mind that some mandatory state drug testing laws in this category also permit the use of point-of-collection testing (POCT) devices that yield an instant result. Employers must review the language of all applicable state laws to ensure they are compliant with result reporting requirements specific to POCT results. Often, state laws provide no additional guidance on this issue, which means that the general requirement probably applies to all types of drug testing.
States with Drug Testing Laws that Do Not Require Notification of Test Results
There are 18 states that have drug testing laws that do not specifically include result reporting requirements. In each case, it is simply because the law does not mention reporting requirements as opposed to specifically stating there are no requirements. Employers are wise, even in these states, to include in a drug testing policy an explanation of the results reporting procedures it observes regardless of the lack of guidance from a state.
However, within this category there is a gray area:
- Hawaii’s law requires laboratories to report results to the donor and no one else without consent – there is no employer obligation.
- Oregon’s law requires laboratories to report results, but only upon request of the donor – again no employer obligation and only conditional upon laboratories.
- Vermont’s law requires a Medical Review Officer (MRO) to report all results to the donor and only positives to the employer – no employer obligation.
- Additionally, municipalities or industries in each state may create their own set of requirements for result reporting. Examples include municipal requirements in San Francisco and mining laws in West Virginia.
States without Drug Testing Laws
Finally, some states may fall into the category of having no drug testing law and thus, no notification requirements. For example, two very litigious states, California and Colorado, pose somewhat complicated legal fields that employers must navigate cautiously, but provide no law specific to drug testing in the workplace. (Both states have case law decisions that directly affect workplace drug testing.)
States without mandatory drug testing laws may give employers greater latitude in setting up and managing a drug testing program, including results reporting. But it’s always wise to err on the side of caution and give ample consideration to the privacy of the candidates and employees subject to drug testing.
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