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Presented to VT League of Cities and Towns at their Municipal Personnel Administration Forum on May 13, 2010. Focuses on drug testing do's and don'ts for employers in Vermont.

Presented to VT League of Cities and Towns at their Municipal Personnel Administration Forum on May 13, 2010. Focuses on drug testing do's and don'ts for employers in Vermont.

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  • 1. Drug Testing
    What you need to know about pre- employment and current employee testing
  • 2. Pre-Employment Testing
    Testing of current employees
    State and Federal Regulations
    What to do in the event of a positive result
    Americans with Disabilities Act protections
  • 3. Definition of “Drug” under VFEPA (Vermont Fair Employment Practices Act)
    "Drug" means a drug listed or classified by the U.S. Drug Enforcement Administration as a Schedule I drug, or its metabolites, and alcohol. 21 V.S.A. § 511(3).
  • 4. Employers CAN require applicants to pass a drug test, if certain conditions are met.
  • 5.
    • Applicant has been given an offer of employment contingent upon negative drug test results
    • 6. Written notice is provided, outlining the testing procedure and a list of the drugs to be tested for, along with a statement that therapeutic levels of medically-prescribed drugs will not be reported
    • 7. The drug test is administered in accordance with specified Vermont procedures for such testing, including a written policy describing the drug testing to be conducted
    Conditions Under Which Pre-Employment Testing is Permitted in Vermont
  • 8. Employer cannot require current employees to be tested unless the following conditions are met:
    Employer has probably cause to believe the employee is using or under the influence of drugs on the job
    Employer offers a bona fide rehabilitation program, either provided by the employer, under contract with a nonprofit hospital service corporation, or provided under a health insurance policy
    Drug Testing of Current Employees Under Vermont Law
  • 9. Employer cannot require current employees to be tested unless the following conditions are met:
    Employee will not be terminated if the test result is positive and the employee agrees to complete the employee assistance program. The employee may be suspended for up to three months to complete the program
    The test is administered in accordance with specified Vermont procedures for such testing including a written policy describing the drug testing to be conducted
    The employee is subject to Federal Drug and Alcohol regulations as specified by the Federal Motor Carrier Safety Administration (FMCSA)
    Drug Testing of Current Employees Under Vermont Law (continued)
  • 10. State law does NOT apply to CDL testing.
    Federal laws and regulations govern CDL drug and alcohol testing
    These laws and regulations REQUIRE ongoing drug and alcohol testing of CDL’s after employment.
  • 11. All employees whose jobs require a CDL are subject to random testing
    Unless an employee actually operates a commercial vehicle, he or she is not required by federal law (and thus Vermont law) to submit to random drug and alcohol testing, regardless of whether or not he or she performs safety-sensitive functions.
    Under FMCSA Regulations:
  • 12. Any driver required to possess a CDL, including those employed by Federal, State, and local government agencies, owner operators, and equivalently licensed drivers from foreign countries
    NOT subject to ongoing testing:
    Drivers who only operate commercial motor vehicles (CMV’s) on private property not open to the public
    Drivers of authorized emergency vehicles such as law enforcement, fire department, public or private ambulance, and volunteer rescue squads, as these vehicles are NOT considered CMV’s
    Who Is Subject to Ongoing Testing Under Federal Law?
  • 13. 1. Pre-Employment
    Also includes drivers who have been removed from a random testing pool for more than 30 days
    Required CDL Driver Tests
  • 14. 2. Post-Accident
    Must be drug and alcohol tested whenever they are involved in a fatal accident or receive a traffic citation resulting from an injury or vehicle-disabling accident
    Alcohol test must occur within 8 hours
    Drug test must occur within 32 hours
    Required CDL Driver Tests
  • 15. 3. Random
    Performed on an unannounced, unpredictable basis on employees whose identifying information (e.g., social security number or employee number) has been placed in a testing pool from which a scientifically arbitrary selection is made. 
    This selection is usually computer generated to ensure that it is indeed random and that each person of the workforce population has an equal chance of being selected for testing, regardless of whether that person was recently tested or not.
    Because this type of testing has no advance notice, it serves as a deterrent.
    Refusal to test is equivalent to a positive test result
    Required CDL Driver Tests
  • 16. 4. “Reasonable suspicion”
    If a driver exhibits signs of drug or alcohol abuse
    Based on observations concerning the appearance, behavior, speech or body odors of the driver
    Required CDL Driver Tests
  • 17. 5. Return to Duty
    involves a one-time, announced test when an employee who has tested positive has completed the required treatment for substance abuse and is ready to return to the workplace
    Required CDL Driver Tests
  • 18. 6. Follow-Up
    conducted periodically after an employee returns to the workplace upon completing rehabilitation for a drug or alcohol problem
    Prescribed by the substance abuse professional (SAP) who signs the return-to-duty report
    administered on an unannounced, unpredictable basis at least six times in the first 12 months following the return-to-duty test
    Can continue for up to 5 years
    Is in addition to random testing
    Required CDL Driver Tests
  • 19. Complete procedures found at:
    CDL Testing Procedures
  • 20. Lab provides the medical review officer with a written report of the result
    Dual confirmation is required for a positive result
    Test showing therapeutic level of tested drug must be reported as negative
    Medical review officer must personally contact the individual, discuss the results, and give the employee/applicant an opportunity to retest a portion of the sample at his/her own expense
    Employer receives confidential report with results
    Testing Result Process Under VT Law
  • 21. Employer is under no obligation to employ the applicant
    individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of an "individual with a disability" when an employer takes action on the basis of their current use
    If Applicant Test is Positive
  • 22. If Employee Test is Positive
    The employer has an obligation under the Drug Free Workplace Act of 1988 to provide a workplace that is free of illegal drugs
    The employer must provide a safe work environment
    Consider the welfare of the employer and other employees, along with the welfare of the employee who tested positive and possible rights under ADA (Americans with Disabilities Act)
  • 23. What to do?
    Employee must be given the opportunity to participate in the EAP or recognized drug/alcohol addiction treatment program
    The employee may be suspended for up to three months to complete the treatment program
    Refusal to participate is cause for termination, as is a positive test after rehabilitation is completed
  • 24. Drug Free Workplace Act vs. Americans with Disabilities Act (ADA) Protections
    The Drug Free Workplace Act specifically permits employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol, and to comply with other Federal laws and regulations regarding alcohol and drug use.
    At the same time, the ADA provides limited protection from discrimination for recovering drug addicts and for alcoholics.
    ADA protects an employee with a disability, but does not give an employee the ability to bring illegal drugs on the premises
    If you have a “no alcohol” policy, then employees also do not have the ability to bring alcohol onto the premises
  • 25. Current illegal users of drugs are not "individuals with disabilities" under the ADA, and are therefore not protected if the employer takes action
    Current alcohol users CAN be protected under the ADA, if the alcoholic can perform the essential functions of the job
    In either case, failure to do the job is cause for disciplinary action, even if this failure is the result of drug or alcohol abuse
    Is an employee who tests positive deemed to have a disability?
  • 26. One of your drivers was driving a dump truck. The truck ran off the road. The driver was not injured, and there were no other vehicles involved, but the truck had to be towed out of a ditch.
    What would you do?
  • 27. One of your supervisors has reasonable suspicion that a CDL arrived at work under the influence of drugs. A drug test was arranged. However, the employee did not show up at the testing site. He reported to work the next day, stating that he did not show up for the testing because he did not agree that he needed to be tested.
    What would you do?
  • 28. A clerical employee is habitually late for work. Her supervisor at times has smelled alcohol on her breath. She’s getting her job done adequately except for the lateness.
    What would you do?
  • 29. An applicant discloses to you in an interview that he is a drug addict but has undergone treatment and has been clean for several years. His drug test comes back positive. He claims he is on painkillers for a bad back.
    What would you do?
  • 30. Be consistent
    Train your supervisors, and document your training efforts
    Maintain a written policy on drug testing and your commitment to a drug free workplace
    What you can do to protect yourself:
  • 31. Enforcement is by private civil action
    State pursues violation of statute
    Employee may seek attorneys’ fees and court costs, damages, and injunctive relief
    Employer penalties include civil fine of $500-$2000, and criminal fine of $500-/$1000, imprisonment for not more than 6 months or both
    Enforcement and Penalties
  • 32. Susan Graham
    Interim HR Solutions
    (802) 279-1117