Current through Register Vol. 42, No. 11, August 30, 2024
(1) An employer will be considered to have
met the burden of proving the drug policy satisfies the "otherwise reliable"
requirement of Code of Ala. 1975, §
25-4-78(3) a.
(i) if:
(a)
The drug policy is delivered to each employee in writing and warns the employee
that a positive test result for any illegal drug as listed in the policy could
result in dismissal, and the warning contains a statement that either, 1)
testing positive; 2) refusal to submit or cooperate with a drug test; or 3)
knowingly altering or adulterating the blood, urine or hair sample will result
in possible dismissal; and
(b) The
drug policy provides for an independent confirmatory test from the same
specimen at the request of and at the expense of the employee; and
(c) The drug policy applies to all employees
regardless of position or classification, and clearly states the basis on which
testing will be conducted, i.e., pre-employment; random; post accident; by a
qualified independent laboratory; and further, if additional testing is imposed
on some but not all employees, the employer must show a rational basis for such
additional testing; and either
1. It is
voluntarily conducted and evaluated in accordance with U.S. Department of
Transportation in 49 CFR, Part 40 and a copy of the report of the medical
review officer is submitted to the Department of Industrial Relations
Unemployment Compensation Division with each claim for unemployment
compensation filed where separation from employment is alleged to be on account
of a drug related separation subject to Section
25-4-78(3) a.
(i); or
2. Provides for the review of laboratory
findings by a qualified independent medical review officer, and the submittal
of such medical review officer's report to the Unemployment Compensation
Division for each claim for unemployment compensation filed where separation
from employment is alleged to be on account of a drug related separation
subject to Section
25-4-78(3) a.
(i), which shall be prima facie evidence that
the laboratory tests are reliable.
(2) The term "Medical Review
Officer" (MRO) as used in this rule is defined as a licensed physician who has
knowledge of substance abuse disorders and has appropriate medical training to
interpret and evaluate an individual's positive drug test results including
evaluation of his or her medical history and any other biomedical information.
Such MRO must not be an employee of a drug testing laboratory unless there is
clear separation of functions preventing any conflict of interest and the MRO
has no responsibility for a laboratory drug testing or quality control
operation.
(3) The following
criteria at a minimum must be reviewed by the MRO for the report of a positive
test to satisfy the "otherwise reliable" provision of Alabama Code Section
25-4-78(3) a
1978:
(a) Confidentially of medical
information and identify of donor.
(b) Maintenance of temperature of specimen
within acceptable range. Use of temperature monitored cup that shows
consistency of the specimen with the donor's body temperature.
(c) Specific gravity test of
specimen.
(d) Maintenance of
documented chain of custody (COC) of specimen with certified copy of original
COC form to be provided to MRO.
(e)
Retention by the laboratory of the original urine specimen and split specimen
of the sample for one full year on all positive test.
(f) The use of another individual's
prescription drugs whether intentional or not is not a valid explanation for a
positive test result.
(g) The
facility at which the specimen is collected is recommended to provide the
following:
1. have an enclosure for private
urination.
2. have a toilet
containing colored water for completion of urination.
3. have running water or sink, and
4. a means outside the enclosure for hand
washing.
(h) Sealing of
the specimen by the collection site person immediately in the presence of the
donor.
(i) Integrity of specimen
maintained by immediately mailing or maintaining the specimen in secure storage
in direct control of the collection site person until it is mailed.
(4) Provisions of Sections (1)(a),
(1)(b)1, and (1)(b)2 of this rule notwithstanding, no otherwise reliable drug
policy established to cover existing employees shall be applicable to existing
employees until a period of thirty calendar days has elapsed from the date the
drug policy was made known to such existing employees in writing and
acknowledgment in writing received from the employee.
(5) A qualified laboratory for the purposes
of this rule is a National Institute on Drug Abuse (NIDA) certified laboratory
or if not so certified utilizes gas chromatography and mass spectrometry
(GC/MS) testing technique.
(6) Hair
Testing
(a) The drug policy provides each
employee at his or her expense to obtain for any position test a followup
reconfirming test by a certified laboratory designated by the Medical Review
Officer that utilizes the same or equivalent testing methods and standards at
the laboratory that performed the initial and confirming tests.
(b) The drug policy applies to all
similarly-situated applicants or employees regardless of position or
classification; clearly states the basis on which drug hair testing will be
conducted, i.e., pre-employment, random, monitoring under a rehabilitation
agreement or "last change" agreement; by a certified laboratory; if additional
testing is conducted on some but not all similarly-situated employees, the
employer has rational basis for excluding some but not other similarly-situated
employees; provides for review by a qualified independent medical review
officer (i.e., a medical review officer not employed by the testing
laboratory), and the submittal of such medical review officer's report to the
Unemployment Compensation Division for each claim for unemployment compensation
filed when separation from employment is alleged to be on account of a
drug-related separation subject to §
25-4-78(3) a.
(i), which shall be prima facie evidence that
the laboratory tests are reliable.
Author: Byron Abrams, Unemployment Compensation
Director
Statutory Authority:
Code of Ala.
1975, §§
25-2-7,
25-2-8,
25-4-111.
