Employment: Time To Check That Policy Again
There are only two ways you can test an Oklahoma employee (which includes applicants): you can be required to do so under the Department of Transportation regulations or you can comply with Oklahoma’s Standards for Workplace Drug and Alcohol Testing Act. This article deals with the latter.
Among the many requirements of the Oklahoma law, an employer must have a written policy in place that complies with the law. This written policy must be in place at least 30 days before you begin (or make any change to the) testing. In our October 2008 edition, we discussed some changes the Oklahoma legislature made, which focused on the ways in which you must get the policy distributed.
But, the law keeps evolving . . .
On January 21, 2009, a Tulsa federal judge entered an order which should cause you to once again look at your policy. Although this order is not (at this time) binding on every Oklahoma employer, it is a good indicator of the possibilities. Remember, it is often better to play it safe and avoid the lawsuit altogether.
As you know, the written policy must comply with the Oklahoma statute, which states that your policy “shall include” information on eleven topics. The last required topic is described as “The available appeal procedures, remedies and sanctions.” Most believed that an employer need not provide any appeal procedures, remedies, and/or sanctions and, that if none were provided, this eleventh topic need not be addressed in your written policy. The Judge disagrees. According to the Order, although an employer need not actually provide appeal procedures, remedies, and/or sanctions, the policy still must address it. The Judge found it is a willful violation of the law to fail to mention the eleventh topic, even if only to say it is not available.
In other words, at least one federal judge believes that compliance with the Oklahoma law requires that your drug and alcohol testing policy either (1) describe the employer-sponsored appeal procedures, remedies, and/or sanctions or (2) tell the employee that the employer does not provide appeal procedures, remedies, and/or sanctions.
If you test Oklahoma applicants or employees for the presence of drugs or alcohol, you should consult legal counsel to ensure your policy and procedures are in compliance with the current state of the law.
Because of the large number of employers who test and the rising number of lawsuits, this is one of the topics which will be discussed in detail at the Employer’s Legal Resource 2009 Workshop. We will go over the eleven topics in detail as well as discuss recent case law, testing procedures, and ways to limit your exposure to lawsuits.
By Kristen L. Brightmire, firstname.lastname@example.org, and Sharolyn C. Whiting-Ralston, email@example.com.