Chapter 3. Post-Accident Drug and Alcohol Testing in the Coal, Oil and Gas, and Energy Industries

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1 & CITE AS 26 Energy & Min. L. Inst. ch. 3 (2005) Chapter 3 Post-Accident Drug and Alcohol Testing in the Coal, Oil and Gas, and Energy Industries Samuel M. Brock III Spilman Thomas & Battle, PLLC Charleston, West Virginia Synopsis Introduction Drug and Alcohol Testing Generally [1] Types of Testing [2] Regulation of Testing [a] Federal Regulation [b] State Regulation Federal Regulation of Post-Accident Drug and Alcohol Testing [1] DOT Regulations [a] Drivers of Commercial Motor Vehicles [b] Oil and Gas Workers [c] Railroad Employees [d] The Effect of Federal Law [2] NRC Regulations State Regulation of Post-Accident Drug and Alcohol Testing [1] Statutory Prohibitions [a] Connecticut [b] Maine [c] Montana [d] Oklahoma [e] Rhode Island [f] Vermont [2] Statutorily Authorized or Permitted [a] Iowa [b] Minnesota [c] Puerto Rico [d] Alaska [e] Arizona [f] Idaho [g] Mississippi [h] Utah... 88

2 SYNOPSIS ENERGY & MINERAL LAW INSTITUTE [3] Workers Compensation Statutes...88 [a] Alabama...89 [b] Arizona...89 [c] Arkansas...89 [d] Florida...90 [e] Georgia...90 [f] Idaho...91 [g] Louisiana...91 [h] Mississippi...92 [i] Ohio...92 [j] Tennessee...93 [k] Utah...93 [l] Colorado...94 [m] Kansas...94 [n] Nevada...94 [o] New Mexico...95 [p] North Dakota...95 [q] Oklahoma...96 [r] South Carolina...96 [s] Virginia...97 [t] West Virginia...97 [4] Unemployment Compensation Statutes...98 [a] Alabama...99 [b] Arizona...99 [c] Arkansas...99 [d] Florida [e] Georgia [f] Idaho [g] Louisiana [h] Tennessee [i] Utah [j] Colorado [k] Kansas [l] Michigan [m] Oregon [n] Pennsylvania [o] Virginia [5] Procedural Testing Statutes [a] Hawaii [b] Kansas

3 POST-ACCIDENT DRUG AND ALCOHOL TESTING SYNOPSIS [c] Louisiana [d] Maryland [e] Nebraska [f] North Carolina [g] Oregon [6] Relevant Case Law Generally Favorable to Testing [a] Alaska [b] Arizona [c] Arkansas [d] Colorado [e] Connecticut [f] Illinois [g] Iowa [h] Kansas [i] Kentucky [j] Minnesota [k] Missouri [l] Nebraska [m] Nevada [n] North Carolina [o] Ohio [p] Oklahoma [q] Oregon [r] Pennsylvania [s] Puerto Rico [t] South Carolina [u] Tennessee [v] Texas [w] Virginia [x] Washington [y] Wisconsin [z] Wyoming [7] States that May Prohibit Pure Post-Accident Testing Based on Privacy-Related Grounds [a] Privacy Case Law Limitations [i] California [ii] Massachusetts [iii] New Jersey [iv] West Virginia

4 SYNOPSIS ENERGY & MINERAL LAW INSTITUTE [b] Definitions of Safety-Sensitive [i] Federal Regulatory Definitions [ii] State Regulatory Definitions [A] Arkansas [B] Connecticut [C] Iowa [D] Montana [E] Puerto Rico [F] Tennessee [iii] Federal Case Law Regarding the Definition of Safety-Sensitive [iv] State Case Law Regarding the Definition of Safety-Sensitive [A] Alaska [B] California [C] Kentucky [D] Massachusetts [E] New Jersey [F] North Carolina [G] West Virginia Collateral Challenges to Testing [1] Retaliation Under Workers Compensation Statutes or in Violation of Public Policy [2] Federal and State Disability-Related Problems State Procedural Restrictions and Challenges [1] Testing Procedures and Common Law Limitations [2] Written Policy [3] Costs of Tests and Re-Tests [4] On-Site Specimen Collection [5] Laboratories [6] Appropriate Specimens [7] Notice of Test Results [8] Opportunity to Rebut or Re-Test [9] Confidentiality [10] Supervisor Training [11] Discipline/Rehabilitation [12] Contractors, Competency, and Indemnification Conclusion

5 POST-ACCIDENT DRUG AND ALCOHOL TESTING Introduction. The past several years have seen a great deal of activity at both the federal and state levels with respect to drug and alcohol testing in the employment context. Federal regulation focuses generally on the mandatory or required testing of applicants and employees in certain safety-sensitive positions in some of the transportation-related industries and the nuclear power industry. State regulation covers a broad spectrum of prohibited, permitted, and encouraged forms of drug and alcohol testing. This chapter will provide an overview of the types of drug and alcohol testing recognized under federal and state law and will focus on the treatment of post-accident testing as may be relevant to the coal, oil and gas, and energy industries Drug and Alcohol Testing Generally. [1] Types of Testing. Due primarily to the development of drug and alcohol protocols in the private sector, and due in part to federal regulation in the transportationrelated industries, the circumstances under which testing is conducted in the employment context have focused on certain specific events or conditions. Many of these reasons for testing are universally recognized. They have become part of the testing nomenclature. Pre-employment testing testing that is part of the application process before an employment offer is made or part of a conditional hiring process, when an employment offer is made contingent on the applicant passing a drug and alcohol test. Testing for cause testing when an employer has probable cause or reasonable suspicion to believe an employee is using or impaired by drugs or alcohol. Post-accident testing testing when an employee is involved in an on-the-job accident that causes some type of physical injury or property damage. Fitness for duty/rehabilitation testing testing during an employee s participation in a drug or alcohol rehabilitation program or when the employee returns to work after completion of such a program (and sometimes in connection with a return to work after some other type of extended leave). 75

6 3.02 ENERGY & MINERAL LAW INSTITUTE Random testing neutral selection based testing, without suspicion, and without prior notice. These forms of testing are not the only forms of testing, but they are, by far, the most commonly recognized reasons for testing by employers throughout the United States. [2] Regulation of Testing. [a] Federal Regulation. There is no specific federal law addressing who can be tested for drugs and alcohol, when they can be tested, or how such testing should be conducted. 1 This said, as relates to the coal, oil and gas, and energy industries, some drug and alcohol testing is required of certain types of applicants and employees under regulations issued by the U.S. Department of Transportation (DOT), pursuant to the Omnibus Transportation Employee Testing Act of 1991, 2 and the U.S. Nuclear Regulatory Commission (NRC). The DOT regulations mandate that private employers in several transportation-related industries implement and maintain drug and alcohol testing programs for applicants and employees in certain safety-sensitive positions. The five affected operating administrations of the DOT are (1) the Federal Motor Carrier Safety Administration (FMCSA); 3 (2) the Federal Aviation Administration (FAA); 4 (3) the Federal Railroad Administration (FRA); 5 (4) the Federal Transit Administration (FTA); 6 and (5) the Research and Special Programs Administration (RSPA). 7 The NRC regulations mandate that nuclear power licensees (and other related parties) require drug and alcohol testing as part of a fitness-for-duty program generally applicable to personnel who are 1 See 3.05[2] infra for the general impact of The American with Disabilities Act (ADA), 42 U.S.C et seq. (2000); The Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. (2000); and state disability laws on drug and alcohol testing programs. 2 Title V of Pub. L. No , 105 Stat. 917 (October 28, 1991) C.F.R. pt C.F.R. pts. 121 and C.F.R. pt C.F.R. pt C.F.R. pt

7 POST-ACCIDENT DRUG AND ALCOHOL TESTING 3.03 granted unescorted access to nuclear power plant facilities. Extensive testing regulations have been adopted for each of these covered industries. [b] State Regulation. State regulation of drug and alcohol testing in the employment context is a mixed bag. Some states have statutes specifically prohibiting all or certain types of drug and alcohol testing. Some state constitutions and common law recognize certain privacy rights which limit or restrict an employer s ability to require drug and alcohol testing of applicants and/or employees. Many states have statutes or common law authorizing, permitting, or encouraging all or certain types of drug and alcohol testing. And finally, many of the states that allow some type of drug and alcohol testing have adopted permissive or mandatory procedures applicable to such testing Federal Regulation of Post-Accident Drug and Alcohol Testing. [1] Department of Transportation (DOT) Regulations. The DOT regulations provide for testing of individuals in certain safetysensitive positions under the following circumstances: (a) Pre-employment drug testing is required; and (b) Pre-employment alcohol testing is permitted and optional. Drug and alcohol testing for cause is required. Post-accident drug and alcohol testing is required. Periodic drug and alcohol testing on some type of pre-announced regular basis, usually as part of an annual physical or medical examination, is required by some of the regulations. Return-to-duty/Rehabilitation testing for drugs and alcohol is required before an employee returns to work after completion of a rehabilitation program or after an extended leave from work. Random drug and alcohol testing is required. Unlike testing regulated by the various states, testing under the DOT regulations is required for all covered individuals in the five affected operating administrations. As pertains to the coal, oil and gas, and energy 77

8 3.03 ENERGY & MINERAL LAW INSTITUTE industries generally, the Federal Motor Carrier Safety Administration (FMCSA) regulations 8 specifically cover drivers of commercial motor vehicles (full-time, regularly employed drivers; casual, intermittent or occasional drivers; and leased drivers and independent owner-operator contractors); the Federal Railroad Administratoin (FRA) regulations 9 specifically cover railroad employees who have been assigned to perform service in the United States subject to the hours of service laws 10 during a duty tour, whether or not the person has performed or is currently performing such service, and any person who performs such service; and the Research and Special Programs Administration(RSPA) regulations 11 specifically cover employees and contract employees of oil, gas, and liquefied natural gas (LNG) pipeline operators who are involved in certain operations, maintenance, and emergency response functions. Employers in these transportation-related industries must abide by the DOT procedural testing rules. 12 These rules contain provisions relating to coverage; employer responsibilities; urine collection personnel; collection sites, forms, equipment, and supplies for urine testing; urine specimen collections; drug testing laboratories; medical review officers (MROs) and the verification process; split specimen tests; problems in drug tests; alcohol testing personnel; procedures for testing sites, forms, equipment, and supplies for alcohol testing; alcohol screening tests; alcohol confirmation tests; problems in alcohol testing; substance abuse professionals and the return-to-duty process; confidentiality and release of information; rules and responsibilities of service agents; and public interest exclusions. Generally, these procedural rules apply to all testing conducted as required by the Omnibus Transportation Employee Testing Act of 1991 and its various implementing regulations. [a] Drivers of Commercial Motor Vehicles. Under 49 C.F.R. Part 382 of the Federal Motor Carrier Safety Administration, an employer is required to administer post-accident alcohol 8 49 C.F.R. pt C.F.R. pt C.F.R. pt C.F.R. pt C.F.R. pt

9 POST-ACCIDENT DRUG AND ALCOHOL TESTING 3.03 testing to a driver: (1) as soon as practicable following an accident if the driver was performing a safety-sensitive function with respect to the vehicle and the accident resulted in a human fatality; or (2) if the driver receives a traffic citation within eight hours of the accident under state or local law for a moving violation arising from the accident, if the accident involved (a) bodily injury to someone requiring medical treatment away from the accident scene or (b) disabling damage to one or more motor vehicles that requires towing from the accident scene. 13 The alcohol test should be administered within two hours following the accident and, in any event, must be administered within eight hours following the accident. 14 An alcohol test cannot be administered more than eight hours after the accident. 15 Under 49 C.F.R. Part 382 of the Federal Motor Carrier Safety Administration, an employer is required to administer post-accident drug testing to a driver (1) as soon as practicable following an accident if the driver was performing a safety-sensitive function with respect to the vehicle if the accident resulted in a fatality; or (2) if the driver receives a traffic citation within 32 hours of the accident under state or local law for a moving violation arising from the accident, if the accident involved (a) bodily injury to someone requiring medical treatment away from the accident scene or (b) disabling damage to one or more motor vehicles that requires towing from the accident scene. 16 The drug test must be administered within 32 hours following the accident. 17 A drug test cannot be administered more than 32 hours after the accident. 18 [b] Oil and Gas Workers. Under 49 C.F.R. Part 199 of the Research and Special Programs Administration, an operator shall test each surviving covered employee for alcohol as soon as practical following an accident, if that employee s performance of a covered function either contributed to the accident or C.F.R C.F.R (d). 15 Id C.F.R C.F.R (b). 18 Id. 79

10 3.03 ENERGY & MINERAL LAW INSTITUTE cannot be completely discounted as a contributing factor to the accident. 19 An alcohol test should be administered within two hours following the accident and cannot be administered more than eight hours after the accident. 20 Under 49 C.F.R. Part 199 of the Research and Special Programs Administration, as soon as possible but no later than 32 hours after an accident, an operator shall drug test each employee whose performance either contributed to the accident or cannot be completely discounted as a contributing factor to the accident. 21 A drug test cannot be administered more than 32 hours after the accident. 22 [c] Railroad Employees. Post-accident toxicological tests must be conducted after (1) any major train accident (a rail equipment accident involving damage in excess of the current reporting threshold that also involves a fatality, a release of hazardous material lading from railroad equipment accompanied by an evacuation, a reportable injury from the hazardous material release, or damage to railroad property of $1,000,000 or more); (2) any impact accident (a rail equipment accident involving damages in excess of the current reporting threshold consisting of a head-on collision, a rear-end collision, a side collision, a switching collision, or impact with a deliberately-placed obstruction that also involves a reportable injury or damage to railroad property of $150,000 or more); (3) a fatal train incident (one that involves a fatality to any onduty railroad employee); or (4) any passenger train accidents (a reportable injury to any person in a train accident (a rail equipment accident involving damage in excess of the current reporting threshold)). 23 Each and every operating employee assigned as a crew member of any train involved in the accident must be tested unless the railroad can immediately determine, on the basis of specific information, that the employee had no role in the cause or severity of the accident. The railroad must obtain blood and urine specimens and may require a breath test. Every C.F.R (a). 20 Id C.F.R (b). 22 Id C.F.R

11 POST-ACCIDENT DRUG AND ALCOHOL TESTING 3.03 reasonable effort must be made to assure that specimens are provided as soon as possible after the accident. 24 [d] The Effect of Federal Law. Employers who test under and in accordance with the DOT regulations, in effect, are protected from collateral challenge to the testing itself. These federal regulations pre-empt otherwise inconsistent state law. 25 The key is determining which applicants and employees are subject to testing under the DOT regulations and administering the testing program in accordance with the required testing procedures set forth in 49 C.F.R. Part 40. [2] NRC Regulations. Pursuant to regulations issued by the Nuclear Regulatory Commission (NRC), 26 licensees authorized to operate a nuclear power reactor, to possess or use formular quantities of strategic special nuclear material (SSNM), or to transport formular quantities of SSNM are required to implement a fitness-forduty program which includes, among other things, drug and alcohol testing. These programs must apply to all persons granted unescorted access to nuclear power plant protected areas, to licensee, vendor, or contractor personnel required to physically report to a licensee s Technical Support Center (TSC) or Emergency Operations Facility (EOF) in accordance with licensee emergency plans and procedures, and to SSNM licensee and transporter personnel who engage in certain activities. 27 As under the DOT regulations, the Nuclear Regulatory Commission regulations require drug and alcohol testing, although under differing circumstances. NRC fitness-for duty programs must provide for testing in the following circumstances: Drug and alcohol testing within 60 days prior to initial granting of unescorted access to protected areas or assignment to activities within the scope of these regulations C.F.R This pre-emption is addressed for the FMSCA at 49 U.S.C (g) and 49 C.F.R ; for the RSPA at 49 C.F.R ; and for the FRA at 49 U.S.C and 49 C.F.R C.F.R. pt. 26 and Appendix A thereto C.F.R

12 3.03 ENERGY & MINERAL LAW INSTITUTE Random drug and alcohol testing. Drug and alcohol testing for cause, i.e., as soon as possible following any observed behavior indicating possible substance abuse; after accidents involving a failure in individual performance resulting in personal injury, in a radiation exposure or release of radioactivity in excess of regulatory limits, or actual or potential substantiated degradations of the level of safety of the plant if there is a reasonable suspicion that the worker s behavior contributed to the event; or after receiving credible information that an individual is abusing drugs or alcohol. Follow-up drug and alcohol testing on an unannounced basis to verify continuing abstention after confirmed substance abuse under these regulations. 28 Post-accident testing under the NRC regulations is not a pure postaccident testing standard but one that includes a post-accident element and reasonable suspicion that the worker s behavior contributed to the accident event. 29 Again, like the DOT regulations, the NRC regulations set forth specific, detailed testing procedures for the required fitness-for duty programs. 30 These regulations cover myriad subjects, including technical testing procedures; procedures for preventing subversion of testing; specimen collection procedures; chain of custody; quality assurance and quality control; procedures for medical review officers (MROs); and confidentiality; as well as more generalized requirements for written policies and procedures; communicating policies; awareness training; training of supervisors and escorts; contractors and vendors; employee assistance programs (EAPs); responses for dealing with positive test results; and appeal procedures. 31 Testing is mandatory, where covered, and compliance with the testing procedures is mandatory C.F.R C.F.R (a)(3) C.F.R. pt. 26, Appendix A C.F.R. pt. 26 and Appendix A thereto. 82

13 POST-ACCIDENT DRUG AND ALCOHOL TESTING State Regulation of Post-Accident Drug and Alcohol Testing. [1] Statutory Prohibitions. Six states prohibit post-accident testing by statute: Connecticut, M aine, Montana, Oklahoma, Rhode Island, and Vermont. In effect, these state statutes prohibit all testing except for those types of testing expressly authorized or permitted by these statutes, and none of these statutes allow for pure post-accident testing. 32 Each of these state statutes, however, authorizes or permits testing based on some form of reasonable suspicion or probable cause (and, in most instances, for other, limited reasons). [a] Connecticut. Connecticut allows testing when there is reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect job performance. 33 [b] Maine. Maine allows testing when there is a reasonable ground for belief in facts that would cause a person to believe an employee may be under the influence of a substance of abuse, provided that probable cause is not based exclusively on (a) information from an anonymous informant, (b) information tending to indicate the employee may have possessed or abused a substance of abuse while off duty, or (c) a single work-related incident. 34 [c] Montana. Montana allows a form of post-accident testing but not pure post-accident testing when an employer has reason to believe that the employee s act or failure to act is a direct or proximate cause of a workrelated accident that has caused death or personal injury or property damage 32 As used in this chapter, pure post-accident testing refers to drug and/or alcohol testing that is conducted solely as a result of the accident and not, for example, because an employer reasonably believes that drugs and/or alcohol caused an accident. 33 Conn. Gen. Stat x(a). 34 Me. Rev. Stat. Ann. tit. 26, 682(6) and 684(2). 83

14 3.04 ENERGY & MINERAL LAW INSTITUTE in excess of $1, In Montana, the definition of employee is limited to one performing, supervising, or managing work in a position involving a hazardous work environment (including those safety-sensitive positions for which federal regulations require testing; positions involving the operation of or work in proximity to construction equipment, industrial machinery, or mining activities; or involving the handling or proximity to flammable materials, explosives, toxic chemicals, or similar substances), in a security position, in a position affecting public safety, or in a position of fiduciary responsibility. 36 For these reasons, we have included Montana in this list of states that prohibit pure post-accident testing. [d] Oklahoma. Oklahoma allows a form of post-accident testing but not pure postaccident testing in the sense that an employer may require testing if it has reasonable suspicion that an employee or another person has sustained a work-related injury or there is property damage greater than $500 as a direct and proximate result of the employee s use of drugs or alcohol. 37 Reasonable suspicion means a belief that an employee is using or has used drugs or alcohol in violation of the employer s written policy drawn from specific objective and articulate facts and reasonable inference drawn from those facts in light of experience, including, but not limited to, observable phenomena; a report of drug or alcohol use while at work or on duty which has been provided by reliable and credible sources and which has been independently corroborated; and evidence the employee is involved in the use, possession, sale, solicitation, or transfer of drugs while on duty, while on the employer s premises, or while operating the employer s vehicle, machinery, or equipment. 38 [e] Rhode Island. Rhode Island allows testing when there is reasonable grounds to believe based on specific aspects of the employee s job performance and specific 35 Mont. Code Ann (5). 36 Mont. Code Ann (4). See also Mont. Code Ann (6) for further definition of hazardous work environment. 37 Okla. Stat. Ann. tit. 40, 554(3). 38 Okla. Stat. Ann. tit. 40, 552(12). 84

15 POST-ACCIDENT DRUG AND ALCOHOL TESTING 3.04 contemporaneous observations, capable of being articulated, concerning the employee s appearance, behavior or speech that the employee s use of controlled substances is impairing his or her ability to perform his or her job. 39 [f] Vermont. Vermont allows testing when the employer has probable cause to believe the employee is using or under the influence of drugs on the job. 40 These definitions are similar to those used in other statutes or in case law which discuss whether drug and alcohol testing is either authorized or permitted based on reasonable suspicion, probable cause, or other related concept. Of course, during the course of investigating an accident, an employer might learn facts that amount to a reasonable suspicion or probable cause that an employee was under the influence of drugs and/or alcohol at the time of a work-related accident, and testing might then be allowed under these more restrictive statutes; however, pure post-accident testing or testing based upon the accident event itself is prohibited in each of these states. Local laws or ordinances also must be considered. While no exhaustive research has been conducted, the city of Berkeley, California, the city and county of San Francisco, California, and the city of Boulder, Colorado, all prohibit post-accident testing within their jurisdictional limits (and Berkeley, California, prohibits all drug testing of employees within its city limits). [2] Statutorily Authorized or Permitted. Several states expressly allow post-accident testing, generally, in one of two contexts. Some state statutes prohibit testing unless authorized or permitted by the statute, then provide that post-accident testing is allowed if it otherwise complies with the statute s procedural rules. Some state statutes provide a safe harbor which authorizes or permits testing done in compliance with the statute s procedural rules (although these later statutes generally do not prohibit non-compliant testing or types of testing). 39 R.I. Gen. Laws (e)(1). 40 Vt. Stat. Ann. tit. 21, 513(c)(1). 85

16 3.04 ENERGY & MINERAL LAW INSTITUTE Statutes which prohibit all testing not specifically authorized or permitted, but which allow for post-accident testing, include the following: [a] Iowa. A form of post-accident testing is allowed in Iowa in the sense that employers are authorized or permitted to require drug and alcohol testing when investigating accidents in the work place in which the accident resulted in an injury to a person for which injury, if suffered by an employee, a record or report would be required [for workers compensation purposes] or resulted in damage to property, including equipment, in an amount reasonably estimated at the time of the accident to exceed $1, Reasonable suspicion testing also is authorized or permitted, and the definition of reasonable suspicion in Iowa allows testing when there is evidence that an employee has caused an accident at work which resulted in injury, if suffered by an employee, would be reportable for purposes of workers compensation or result in property damage in excess of $1, [b] Minnesota. A form of post-accident testing is allowed in the sense that employers are authorized or permitted to require reasonable suspicion testing, which, by definition in Minnesota, includes when an employee has sustained a personal injury as defined by the workers compensation statute or has caused another employee to sustain a personal injury or when an employee has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident. All reasonable suspicion testing in Minnesota requires that the employer have a reasonable basis for forming its belief based on specific facts and rational inferences drawn from those facts Iowa Code Ann (8)(f). 42 Iowa Code Ann (8)(c) and (1)(h)(5). 43 Minn. Stat. Ann (5). 86

17 POST-ACCIDENT DRUG AND ALCOHOL TESTING 3.04 [c] Puerto Rico. Post-accident testing is allowed for controlled substances when an accident occurs in the workplace, is attributed to an employee, in connection with his or her job functions, and occurs during working hours. 44 Accident is defined as requiring serious damage to property or physical harm to a person. 45 Unlike the other statutes listed immediately above, Puerto Rico s statute appears to contemplate that other types of testing (not specifically authorized or permitted in the statute) may be allowed. Thus, it may more closely resemble the safe harbor statutes discussed immediately below. Statutes with some sort of safe harbor protection for testing conducted in compliance with the statute s procedural rules and which further authorize or permit post-accident testing include the following: [d] Alaska. In Alaska, testing is allowed for investigation of accidents in the workplace if the test is administered as soon as practicable after an accident and the employer reasonably believes the employee may have contributed to the accident. 46 [e] Arizona. In Arizona, testing is allowed for investigation of accidents in the workplace if the test is administered as soon as practicable after an accident and the employer reasonably believes the employee may have contributed to the accident. 47 [f] Idaho. Post-accident testing for drugs and alcohol, with no further statutory explanation, is permitted in Idaho. 48 [g] Mississippi. A form of post-accident testing is allowed in Mississippi in the sense that the statute authorizes and permits reasonable suspicion testing, and 44 P.R. Laws Ann. tit. 29, 161e(a). 45 P.R. Laws Ann.tit. 29, 161(a). 46 Alaska Stat (c)(2). 47 Ariz. Rev. Stat. Ann (B)(2). 48 Idaho Code (4)(c). 87

18 3.04 ENERGY & MINERAL LAW INSTITUTE reasonable suspicion includes when an employer has information that an employee has caused or contributed to an accident while at work. 49 [h] Utah. A form of post-accident testing is allowed in Utah in the sense that the statute authorizes and permits testing for the following purposes: (a) investigation of possible employee impairment; (b) investigation of accidents in the workplace or incidents of workplace theft; (c) maintenance of safety for employees and the general public; or (d) maintenance of productivity, quality of products or services, and security of property or information. 50 Testing under the Utah statute is not limited to circumstances where there are indications of individual, job-related impairment. 51 [3] Workers Compensation Statutes. Several states recognize drug and alcohol testing in their workers compensation statutes. A number of these state statutes appear to allow postaccident testing, otherwise compliant with the applicable statute, in the sense that they allow employers with testing programs to receive a premium discount for workers compensation insurance or they allow disqualification of employees who test positive (or refuse to submit to testing) from receiving workers compensation benefits, or both. Generally, these state statutes require post-accident testing, of some form, for an employer to receive a workers compensation premium discount. The workers compensation statutes in some other states appear to acknowledge the existence of employer testing programs, but they seem to fall short of specifically authorizing or permitting post-accident testing. 52 Statutes with workers compensation premium discounts, benefit disqualification, or both, and which appear to allow post-accident testing, include the following: 49 Miss. Code Ann (m)(v). 50 Utah Code Ann (2)(a) (e). 51 Utah Code Ann (3). 52 Of course, most state workers compensation statutes provide for benefit disqualification (or benefit reduction) if a work-related injury is caused by or results from drug or alcohol impairment, but many are silent about testing for the presence of drugs or alcohol in the employee s system. 88

19 POST-ACCIDENT DRUG AND ALCOHOL TESTING 3.04 [a] Alabama. The Alabama statute provides a premium discount for a drug-free workplace program that includes post-accident testing if the employee caused or contributed to an on-the-job injury that resulted in lost work time 53 and reasonable suspicion testing, which includes information that an employee has caused or contributed to an accident while at work. 54 The statute also provides for disqualification from workers compensation benefits for positive test results or refusals to test. 55 [b] Arizona. The Arizona statute provides for disqualification from workers compensation benefits for positive test results or refusals to test under an employer policy administered in accordance with Arizona s safe-harbor statute; provided that an alcohol test is administered not more than 24 hours after the employer receives notice of the injury. 56 [c] Arkansas. The Arkansas statute allows a premium discount for a drug-free workplace program that includes post-accident drug testing for all employees and alcohol testing for safety-sensitive employees after an accident that results in an injury 57 and reasonable suspicion testing, which includes information that an employee has caused, contributed to, or been involved in an accident while at work. 58 Under the Arkansas statute, absent reasonable suspicion, post-accident testing for alcohol is limited to employees in safety-sensitive positions, which the statute defines to mean (1) a position in which a drug or alcohol impairment constitutes an immediate and direct threat to public health or safety (such as carrying a firearm, performing life threatening procedures, working on confidential 53 Ala. Code (a)(5). 54 Ala. Code (a)(2). 55 Ala. Code Ariz. Rev. Stat. Ann Arizona s safe harbor statute, Ariz. Rev. Stat. Ann , is discussed in 3.04[2][e], supra. 57 Ark. Code Ann (a)(5). 58 Ark. Code Ann (a)(2). 89

20 3.04 ENERGY & MINERAL LAW INSTITUTE information or documents pertaining to criminal investigations, or working with controlled substances) or (2) a position in which a momentary lapse in attention could result in injury or death to another person. 59 Safetysensitive position is further defined as a position involving a safety-sensitive function under the DOT regulations, 60 and the statute authorizes the state to promulgate rules expanding the scope of safety-sensitive positions to those where impairment may present a clear and present risk to co-workers and other persons. The Arkansas statute also provides for disqualification from workers compensation benefits for positive test results. 61 [d] Florida. The Florida statute allows a premium discount for a drug-free workplace program that includes reasonable suspicion testing, which includes information that an employee has caused, or contributed to, or been involved in an accident while at work. 62 The statute also provides for disqualification from workers compensation benefits for positive test results or refusals to test. 63 In addition, post-accident testing is authorized and permitted by Fla. Stat. Ann. Section presumably as part of a drug-free workplace program adopted pursuant to Fla. Stat. Ann. Sections and and an employer has the right to require a drug and alcohol test, even in the absence of a compliant drug-free workplace program, if the employer has reason to suspect that the [workers compensation-covered] injury was occasioned primarily by the intoxication of the employee or by the use of any drug... [that] affected the employee to the extent that the employee s normal faculties were impaired. 64 [e] Georgia. The Georgia statute provides a premium discount for a drug-free workplace program that includes post-accident testing if the employee has 59 Ark. Code Ann (a)(1) C.F.R. pt Ark. Code Ann (18). 62 Fla. Stat. Ann (4)(a)(2). See Fla. Stat. Ann , which provides for the premium discount. 63 Fla. Stat. Ann Id. 90

21 POST-ACCIDENT DRUG AND ALCOHOL TESTING 3.04 caused or contributed to an on-the-job injury which resulted in lost work time 65 and reasonable suspicion testing, which includes information that an employee has caused or contributed to an accident while at work. 66 For purposes of workers compensation benefit disqualification, positive test results or refusals to test serve to create a rebuttable presumption that the injury resulted from intoxication or the influence of drugs. 67 [f] Idaho. This workers compensation statute allows a premium discount for a drug-free workplace program administered in accordance with Idaho s safe harbor statute. 68 [g] Louisiana. An employer has the right to demand a post-accident test immediately after an alleged job accident, and, for purposes of workers compensation benefit disqualification, certain presumptions apply to positive test results and refusals to test. 69 Louisiana also has a general drug testing statute with various substantive and procedural requirements, but the statute, itself, does not expressly require, permit, or prohibit particular types of testing. Louisiana s general drug testing statute does not apply to any person, firm or corporation engaged or employed in the exploration, drilling, and/or production of oil or gas in Louisiana or its territorial waters. 70 Louisiana s workers compensation statute contains limited safe harbors for postaccident testing 71 that are similar to the limited safe harbors under its general drug testing statute Ga. Code. Ann (b)(5). 66 Id. See Ga. Code Ann which provides for the premium discount. 67 Ga. Code Ann Idaho Code Idaho s safe-harbor statute, Idaho Code et seq., is discussed in 3.04[2][f], supra. 69 La. Rev. Stat. Ann. 23: La. Rev. Stat. Ann. 49:1002(H). 71 La. Rev. Stat. Ann. 23: La. Rev. Stat. Ann. 49:1001 et seq. Louisiana s general drug testing statute is discussed in 3.04[5][c], infra. 91

22 3.04 ENERGY & MINERAL LAW INSTITUTE [h] Mississippi. This workers compensation statute allows a premium discount for a drug-free workplace program administered in accordance with Mississippi s safe harbor statute. 73 [i] Ohio. The Ohio statute provides a premium discount for a drug-free workplace program that includes post-accident testing of all employees who may have caused or contributed to an on-the-job accident, as soon as possible after any necessary medical attention is received or within eight hours for alcohol and 32 hours for drugs. The term accident means an unplanned, unexpected or unintended event which occurs on the employer s property, during the conduct of the employer s business or during working hours or which involves an employer-supplied motor vehicle or a motor vehicle used in conducting the employer s business, or within the scope of employment, and which results in a fatality, bodily injury requiring off-site medical attention, or vehicular or non-vehicular damage in excess of the dollar amount specified by the employer in its testing policy. 74 For purposes of benefit disqualification, the statute also establishes various presumptions for positive test results and refusals to test. 75 In State ex rel. Ohio AFL-CIO v. Ohio Bureau of Workers Compensation, the Supreme Court of Ohio declared portions of the workers compensation statute unconstitutional because of the presumption of impairment for being under the influence if an employee tests positive in a post-accident test (without individualized reasonable suspicion) and because of the state authorization allowing private employers to conduct testing of employees without individualized reasonable suspicion for purposes of denying workers compensation benefits Miss. Code Ann Mississippi s safe-harbor statute, Miss. Code Ann et seq., is discussed in 3.04[2][g], supra. 74 Ohio Admin. Code (E)(4)(b). See Ohio Rev. Code Ann (E) which provides for the premium discount. 75 Ohio Rev. Code Ann (A). 76 State ex rel. Ohio AFL-CIO v. Ohio Bureau of Workers Comp., 780 N.E.2d 981 (2002). 92

23 POST-ACCIDENT DRUG AND ALCOHOL TESTING 3.04 [j] Tennessee. The Tennessee statute provides a premium discount for a drug-free workplace program that includes post-accident drug testing for employees and post-accident alcohol testing for employees in safety-sensitive positions, if the accident resulted in an injury otherwise covered by workers compensation, 77 and reasonable suspicion testing, which includes information that an employee has caused, contributed to, or been involved in an accident while at work. 78 The Tennessee Department of Labor and Workplace Development has adopted regulations for implementing drug-free workplace programs. 79 Without reasonable suspicion, post-accident testing for alcohol is limited to employees in safety sensitive positions performing safety-sensitive functions under the DOT regulations 80 or pursuant to rules promulgated by the state to expand the scope of safety-sensitive positions in cases where impairment may present a clear and present risk to co-workers and other persons. Safety-sensitive positions also refers to positions in which a drug or alcohol impairment constitutes an immediate and direct threat to public health or safety, such as positions requiring an employee to carry a firearm, perform life threatening procedures, work with confidential information or documents pertaining to criminal investigations or work with controlled substances, or a position in which a momentary lapse in attention could result in injury or death to another person. 81 The statute also provides certain presumptions toward disqualification for workers compensation benefits for positive test results and refusals to test. 82 [k] Utah. For purposes of workers compensation benefit disqualification, presumptions apply to positive test results and refusals to test when testing is administered under Utah s safe-harbor statute Tenn. Code Ann (a) and (a)(5). 78 Tenn. Code Ann (a)(2). 79 Tenn. Comp. R. & Regs C.F.R. pt Tenn. Code Ann (16). 82 Tenn. Code Ann Utah Code Ann. 34A Utah s safe-harbor statute, Utah Code Ann et seq., is discussed in 3.04[2][h], supra. 93

24 3.04 ENERGY & MINERAL LAW INSTITUTE Various other state workers compensation statutes refer to post-accident testing or testing in connection with a work-related injury, but they fall short of expressly authorizing or permitting such testing or they contain little guidance detailing exactly what type of testing is contemplated by the statute. These statutes include the following: [l] Colorado. In Colorado, an injured employee s non-medical workers compensation benefits are reduced by 50 percent when an injury results from the presence in the employee s system of a non-prescribed controlled substance or a blood alcohol level at or above 0.10 percent (or lower level set by any applicable federal statute or regulation) as evidenced by a drug or alcohol test conducted at a medical facility or laboratory licensed or certified to conduct such tests. A positive test result creates a presumption that the employee was intoxicated or under the influence of drugs. 84 The statute is silent about the type of testing contemplated in this provision. [m] Kansas. The Kansas statute provides a conclusive presumption that the employee was impaired due to alcohol or drugs if there is a positive test result at levels set by the statute and if there was probable cause to believe that the employee used, had possession of, or was impaired by the drug or alcohol while working. A refusal to submit to post-accident testing is inadmissible unless there was probable cause to believe that the employee used, possessed, or was impaired by a drug or alcohol while working. 85 [n] Nevada. The Nevada statute sets forth a rebuttable presumption that (i) if an employee is intoxicated at the time of the injury, intoxication must be presumed to be the proximate cause of the injury, and (ii) if an employee has any amount of controlled substances in his system at the time of the 84 Colo. Rev. Stat. Ann Kan. Stat. Ann

25 POST-ACCIDENT DRUG AND ALCOHOL TESTING 3.04 injury (without a current and lawful prescription), the controlled substance must be presumed to be the proximate cause of the injury. 86 The statute is silent about the reasons for testing but would appear to contemplate that some types of testing would be used to determine the presence of controlled substances in an employee s system. [o] New Mexico. In New Mexico, no workers compensation is due or payable by an employer in the event that an injury was occasioned by the intoxication of the employee. 87 No workers compensation is due or payable by an employer in the event that an injury was occasioned solely by the person being under the influence of a controlled substance, unless lawfully dispensed. 88 Workers compensation otherwise payable is reduced by 10 percent if the employee s injury is not occasioned by intoxication under N.M. Stat. Ann. Section or is not occasioned solely by the influence of a controlled substance under N.M. Stat. Ann. Section (presumably, if a contributing cause but not the sole cause). Test results as evidence of intoxication or drug influence may not be considered unless the testing procedures conform to the DOT regulations 89 and the test is performed in a laboratory certified by DOT. The New Mexico statute is silent as to the reasons for testing. 90 [p] North Dakota. The North Dakota statute provides for disqualification from workers compensation benefits for positive test results or refusals to test. 91 If an employer claims that an employee is not entitled to workers compensation benefits because of voluntary impairment caused by use of alcohol or illegal use of a controlled substance, the burden of proving the exemption or forfeiture is on the employer; however, an alcohol concentration level or the 86 Nev. Rev. Stat. 616C N.M. Stat. Ann N.M. Stat. Ann C.F.R. pt N.M. Stat. Ann N.D. Cent. Code

26 3.04 ENERGY & MINERAL LAW INSTITUTE level of an illegally used controlled substance sufficient to cause impairment by a test required by a physician or other qualified person and performed as required by the DOT regulations 92 creates a rebuttable presumption that the injury was due to impairment caused by alcohol or a controlled substance. An employer who has a mandatory testing policy for work accidents or who has reasonable grounds to suspect that an employee s alleged work injury was caused by the employee s voluntary impairment from the use of alcohol or the illegal use of a controlled substance may request that the employee undergo testing to determine if the employee had alcohol or the controlled substance in his system at levels greater than the limits set by the DOT regulations at the time of the injury. If the employee refuses to submit to such a test (post-accident by policy or reasonable grounds to suspect voluntary impairment caused a work-related accident), the employee forfeits all workers compensation benefits arising out of that injury. 93 [q] Oklahoma. Positive test results from testing under Oklahoma s drug and alcohol testing statute 94 are admissible evidence in determining whether the use of alcohol or drugs disqualifies an employee from receiving workers compensation benefits. 95 [r] South Carolina. Under the South Carolina statute, a credit of up to five percent for workers compensation insurance is available for employers who adopt and maintain a drug prevention program. 96 The statute is not specific about what is to be included in such a program, including what type of testing is required or permitted by the statute, except that the statute expressly provides that the testing procedures for such a program must include a provision for random sampling of all persons who receive wages and compensation in any form from the employer C.F.R. pt N.D. Cert. Code Okla. Stat. Ann. tit. 40, 551 et seq. (discussed in 3.04[1][d], supra), which does not authorize pure post-accident testing but closer to reasonable suspicion testing. 95 Okla. Stat. Ann. tit. 85, S.C. Code Ann and

27 POST-ACCIDENT DRUG AND ALCOHOL TESTING 3.04 [s] Virginia. Any employer maintaining a drug-free workplace program is eligible for a premium discount of up to five percent on its workers compensation insurance. The insurance carrier is to determine the requirements for the program. 97 The Virginia statute is silent about whether and to what extent testing is permitted or required in such a program. Workers compensation benefits will not be awarded to an employee for injury or death caused by that employee s intoxication or use of a non-prescribed controlled substance. The person or entity asserting this defense has the burden of proof. If a drug or alcohol test administered at the time of injury reflects a positive test result (for alcohol, 0.8 blood alcohol concentration by weight; for drugs, a positive test result from a SAMHSA certified laboratory), there is a rebuttable presumption that the employee was intoxicated due to the consumption of alcohol or use of a non-prescribed controlled substance at the time of the injury. The employee can overcome the rebuttable presumption with clear and convincing evidence to the contrary. The presumption does not apply if the employee dies as a result of the injury. 98 [t] West Virginia. An employee is disqualified for workers compensation benefits if an injury was caused by the employee s intoxication. Upon the occurrence of an injury which the employee asserts, or which reasonably appears to have occurred, in the course of and resulting from the employee s employment, the employer may require the employee to undergo a blood test for the purpose of determining the existence or non-existence of evidence of intoxication pursuant to the rules of administration of the test promulgated by the board of managers: Provided, that the employer must have a reasonable and good faith objective suspicion of the employee s intoxication and may only test for the purpose of determining whether the person is intoxicated. 99 This statute does not necessarily authorize or permit post-accident testing and could be viewed as only permitting a form of reasonable suspicion testing. This 97 Va. Code Ann Va. Code Ann (A) and (B). 99 W. Va. Code (a). 97