Current through Register Vol. 49, No. 9, September, 2024
A.
Purpose.
The purpose of this rule is to provide for the enforcement and
administration of Ark. Code Ann. §
11-3-203.
In general, the statute provides that it is unlawful for any person,
partnership, association or corporation, either for himself or herself or in a
representative or fiduciary capacity, to require any employee or applicant for
employment, as a condition of employment or continued employment, to submit or
take a physical, medical examination, or drug test unless the examination is
provided at no cost to the employee or applicant and a copy of the examiner's
report is provided free of charge to the applicant or employee upon written
request.
The statute further provides that notwithstanding the general
prohibition, if an employee tests positive for an illegal drug as defined by
rule of the Department of Labor, the employer and employee may agree in writing
who will bear the cost of future drug tests or screens required as a condition
of continued employment.
It is not the purpose of this rule to mandate the manner or
type of drug testing procedures utilized by an employer.
B.
General Requirements.
1. The employer shall provide the Department
of Labor upon request a copy of any written agreement which would require an
employee to bear the cost of future drug tests or screens following a positive
test. Such an agreement shall be maintained for a period of three (3) years
following termination of employment.
2. Under no circumstances may the cost to the
employee exceed the actual cost of the drug test. If the cost of the test is
withheld from the employee's pay or otherwise reimbursed to the employer by the
employee, the employer shall maintain records of the actual cost of the test
along with records of the corresponding with holdings or reimbursements and
provide these to the Department of Labor upon request. Such records shall be
maintained for a period of three (3) years.
3. A physical, medical examination, or drug
test must be provided at no cost to the employee or applicant even if the
reason the employer requires such an examination or test is because it is
mandated by a state or federal law that regulates the safe manner in which the
employee performs his/her job. An examination or test is not required "as a
condition of employment or continued employment" within the meaning of Ark.
Code Ann. §
11-3-203
if the examination or test is required to determine eligibility for an
employment benefit, such as a leave of absence, or an accommodation.
4. If an employee requests that a sample be
re-tested or re-screened following a positive drug test, the employer may
require such re-test to be conducted at the employee's cost.
C.
Definitions. As
used in this rule and Ark. Code Ann. §
11-3-203:
1. "Illegal drug" means any controlled
substance which is unlawful for a particular employee or applicant to possess
or use. This includes prescription medication for which an employee or
applicant does not have a current or valid prescription for use. This also
includes marijuana. Alcohol shall be considered "illegal" for the purposes of
this regulation if at the time of the test, the employer had a written policy
which:
a. prohibited alcohol use in the
circumstances at issue;
b.
established an alcohol testing procedure; and
c. established the concentration of alcohol
which would be considered a "positive" test;
3. "tests positive" means that there has been
a positive test result on a confirmatory drug test as opposed to a screening
test.
D.
Enforcement.
1. Notice of
assessment or claim
In the event the Labor Standards Division determines that there
has been a violation of Ark. Code Ann. §
11-3-203
or this rule, following an investigation of the matter, notice to the employer
shall be given in the same manner as notice for minimum wage and overtime
violations, Rule
010.14 -111, or by a Preliminary
Wage Determination Order in the case of an individual wage claim pursuant to
Ark. Code Ann. §
11-4-303.
2. Contesting an assessment or
claim
a. An employer may contest an
assessment or Preliminary Wage Determination order by filing a written request
for a hearing with the Director of Labor, 10421 West Markham, Little Rock, AR
72205. The written request must be made within fifteen (15) days after the
employer's receipt of the Notice of Assessment or Preliminary Wage
Determination Order or the assessment or order will become final.
b. A written request for a hearing shall be
referred to a hearing officer designated by the Director and shall be handled
as an adjudicative matter pursuant to Rule
010.14 -007.
3. Penalties
a. Each violation of Ark. Code Ann. §
11-3-203(a)
shall constitute a misdemeanor offense, punishable by a fine not to exceed
$100.
b. The Department of Labor
may demand payment and seek recovery of any charges, fees, wage deductions, or
other payments made by employees as a result of an employer's violation of Ark.
Code Ann. §
11-3-203
or this rule.
c. In the event that
any charge fee, wage deduction or other payment made by an employee results in
a wage payment to that employee of less than the applicable state minimum wage,
it is a violation of the Arkansas Minimum Wage and Overtime Act, Ark. Code Ann.
§§
11-4-210
and -211 and may result in the assessment of a civil money penalty or
liquidated damages pursuant to Rule
010.14 -111.
E.
Effective Date
The effective date of this rule is August 1,
2010.
