Page 64 - Occupational Health & Safety, September 2017

Drug Testing
The Cost of Non-Compliance
State mandatory law compliance and state marijuana law issues are certainly concerns that company program managers must
deal with. However, AL
BY BILL JUDGE
et’s be honest—we are all in this business to make money. Whether you’re a TPA, an em- ployer, a laboratory, a clinic, or a lawyer, to survive we must make money. But the ever-
evolving and complicated compliance issues we face can undermine our goals.
For service providers and employers in particular, the cost of non-compliance is becoming an unman- ageable issue. In the more than 40 years since work- place drug testing began in this country, we have grown from about 12 state laws and approximately 100 court cases to more than 600 state laws and regu- lations and more than 12,000 court and agency de- cisions that impact what we do. Certainly, not all of these statutes, regulations, and court or agency deci- sions affect your business. But some do!
For example, consider . . .
1. The cost of state law (including marijuana laws) non-compliance;
2. The cost of ADA non-compliance;
3. The cost of OSHA non-compliance;
4. The cost (lost opportunity) of state unemploy-
ment defense non-compliance;
5. The cost (lost opportunity) of state workers’
compensation claim defense non-compliance;
6. The cost of NLRA (onion) law non-compliance; 7. The cost of state human rights law non-compliance. Overwhelming? Yes, it is. And this doesn’t even con-
sider other federal rules you may be obliged to follow.2 If you fail to comply with the rules that apply to your organization, it could cost you. We have seen judgments, settlements, jury awards, and consent de-
crees ranging from $30,000 to well over $1.5 million. How do you avoid the cost of non-compliance? How do you keep up with the fast-changing world of compliance? The key is information, information, information. Each of the areas of compliance listed above has rules to follow. If you follow the rules, you will minimize your losses. Sure, some of the issues listed above are extremely detailed and complicated,
but they are your blueprint for protection.
Start by knowing the rules that apply to you. You don’t have to go to law school to understand and com- ply with these rules. But, at least in general terms, you do have to take the time to be aware of those rules that apply to your operation. What follows is a small
example of some of these rules.
DA issues may be far more problematic.
60 Occupational Health & Safety | SEPTEMBER 2017
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Unfortunately, we only have enough space in this article to address state law non-compliance and some ADA (prescription drug) issues.
State Law Non-Compliance
Just about every state has some rule, law, or regulation that impacts your operation. States are described as:
1. Mandatory, meaning if you wish to conduct drug testing, you must do so per state rules.
2. Voluntary, meaning if you want the benefits provided by a state law or program, you must test per state rules.
3. Required, meaning if you have certain job func- tions, you must test.
4. Immunity, meaning if you test per state rule, you are immune from liability.
5. Marijuana, meaning a state authorizing medi- cal/personal use of marijuana.
6. Open, meaning there are no state-specific rules.
Mandatory States: You Must Follow These Rules
There are currently 22 mandatory states: AZ, CA, CT, DE, HI, IA, LA, MA, MD, ME, MN, MT, NC, NE, NJ, NV, NY, OK, OR, RI, VT, and WV (AZ, DE, and NY are considered mandatory due to restrictions in their medical marijuana laws).
The mandatory state statutes can be extremely de- tailed, such as Iowa, Minnesota, or Oklahoma, or as “simple” as California’s statute that, aside from some training and procedural requirements, limits random testing to safety-sensitive and security-sensitive jobs.
Voluntary States—Financial Opportunities
Voluntary states provide financial opportunities to employers—provided you follow the rules. There are two types of “voluntary” states, both related to work- ers’ compensation: states that provide a Rebuttable Pre-
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