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Oklahoma’s new laws that give employers greater latitude for workplace drug testing can help the state address its substance abuse epidemic, according to workplace advocates. Still, businesses that drug test their workers should use more than a zero tolerance approach, educators warn.
Amended statutes, which took effect Nov. 1 and were tweaked in an emergency order May 8, among other things, allow employers to test workers with negative performance patterns, excessive absenteeism or tardiness; test workers following a leave of absence or job reassignment; test whole groups or shifts of employees; test workers who, while at work, damage property of any value; and test independent contractors when there’s a contractual agreement to allow it.
Employers’ drug policies now may state workers will be tested for “drugs and alcohol;” they no longer must list specific drugs. And today’s employers aren’t obliged to offer employee assistance programs to conduct drug testing.
“The new laws clear up issues as far as unemployment insurance claims, and allow us to understand drug tests in a more direct manner and get those records at all,” said John Carpenter, spokesman for the Oklahoma Employment Security Commission. Employers don’t need written consent from workers to release their drug test results, an unintended loophole created temporarily by the November amendments.
OESC doesn’t track how many cases involve failed or refused drug tests, Carpenter said. But of last year’s 170,802 initial claims for unemployment insurance, 60,313 were protested by employers, including 44,912 for misconduct.
Employees still have protections under the amended laws, said Mike Lauderdale, a labor and employment attorney with McAfee & Taft. Employers, he said, still are required to keep drug test results confidential, absent certain circumstances. And employees also are entitled to request confirmation tests within 24 hours of receiving results of a positive drug test, he said.
Susan Lobsinger, president of USA Mobile Drug Testing, applauds the legislative clarifications. In the past six months, she’s had three clients grapple with the loophole affecting claims for unemployment benefits, she said.
“Drug use is an absolute epidemic in Oklahoma, and drug testing can be huge in stopping it,” Lobsinger said. The use of methamphetamines nearly is equal to the use of marijuana, she said.
To address the problem, employers not only must require pre-employment drug tests, but also periodic, random on-site testing, Lobsinger recommended.
“Pre-employment drug tests are no more than I.Q. tests,” she said. “Resourceful drug users can figure out how to pass them, whether it’s drinking water or buying urine over the Internet.”
Meanwhile, an employee who is “whacked out on drugs can cause an accident that puts a company out of business overnight,” Lobsinger said. She especially recommends random testing for drivers and other workers who perform dangerous tasks, including operating forklifts or working on oil and gas rigs.
Jim Priest, a former longtime labor lawyer and executive director of Fighting Addiction Through Education Inc., agrees. Studies show that individuals under the influence are behind about 80 percent of all crimes, he said.
An ethical approach to substance abuse in the workplace requires more than drug testing and a zero tolerance approach, he said. It requires employers go beyond a policy and include education, access to employee assistance programs, whether mandated or not, and supervisor training in identifying and dealing with substance abusers, he said.
“The new laws have subtle underpinnings that drug users are bad people and to get them out of the workplace,” Priest said. “But 80 percent of people with substance abuse problems are employed and mostly fine, most of the time.
“Addiction is a disease of the brain, and you have to look at it as a health issue, not a crime issue,” he said. To have the most productive workforce, he said, employers can’t ignore the private lives of employees, including those struggling with and distracted by the addictions of kids or spouses.
Employers aren’t automatically covered by the new workplace drug testing laws, said Tanya Bryant, director in Crowe & Dunlevy’s labor and employment practice group. To take advantage of them, they need to amend their written policies and give employees 10 days’ notice of changes, Bryant said. The policy in place at the time any drug and alcohol testing is done will control any subsequent legal proceeding, she said.
Bryant recommends requiring signatures from employees, acknowledging they’re aware of and understand the policy changes.