Effective November 1, 2011, the state of Oklahoma added new revisions to its drug and alcohol testing statute—the Standards For Workplace Drug and Alcohol Testing Act, Title 40, Oklahoma Statutes, §§ 551 – 563. Your managers and supervisors should familiarize themselves with the changes, and your organization’s written policy should reflect these revisions. Whether your organization has employees in Oklahoma or not, it is a good idea, at least annually, to review your drug and alcohol policy with your organization’s legal counsel to make sure it complies with the laws in your particular state.

 
The Oklahoma statute previously excluded from the definition of an “employee,” subject to the Act, all independent contractors, subcontractors, or employees of an independent contractor. Now, however, an independent contractor, subcontractor, or employee of an independent contractor, may be subject to a workplace drug or alcohol testing policy under the terms of the contractual agreement when the drug or alcohol testing policy applies to other workers at the job site or workers who are in the same or similar classification or group.

Some of the other Oklahoma statutory revisions include:

• A shortened 10-day notice period (previously, 30 days) before an employer can change the testing policy;
  
  
• A new standard for employers—“for cause” testing must be based on a “reasonable belief,” which replaces the “reasonable suspicion” standard;
  
  
• Removal of the requirement that an employer specifically identify in the policy the substances for which it can test;
  
  
• A specific statutory approval for use of breathalyzers and “onsite or quick testing devices” included in the employer’s policy;
  
  
• If an employee does not submit to required testing, eligibility for unemployment and workers’ compensation benefits can be limited; 

• Employers are no longer required to have an in-house or employee assistance program (EAP) in order to conduct drug or alcohol testing;
  

• Criminal sanctions for an employer’s violations of the Act were repealed; and
  

• The statute of limitations for civil suits alleging willful violation of the Act is reduced to one year (previously, two years) and requires proof that the employer had “specific intent” to violate the act.

No matter the state jurisdiction in which your organization’s employees perform their job duties, drug and alcohol testing is an important safety issue for employers. Drug and/or alcohol abuse accounts for tardiness, absenteeism, theft, decreased production, increased turnover, low morale, as well as workplace crime and violence. The U.S. Department of Labor (DOL) attributes billions of dollars in business losses each year to drug and alcohol abuse. It is estimated that 65 percent of all on-the-job accidents are attributable to drug or alcohol abuse.

As to employers that do not make testing an important part of their risk management program, the DOL has noted some of the pitfalls those organizations can fall into that can undermine the effectiveness of drug-free workplace programs:

• Focusing only on illicit drug use and failing to include alcohol abuse—the number one drug abused in our society;
  

• Accepting drug use and alcohol abuse as “just a part of modern life” and thinking it is a normal cost of doing business; 

• Being reluctant, as a supervisor or manager, to confront employees on the basis of poor performance; and
  

• Reinforcing an employee’s denial regarding the impact of his or her alcohol or drug use.

Having a drug-free workplace program is your organization’s best defense against alcohol and drug problems. Your organization’s written drug-testing policies and procedures should address both pre- and post-employment testing.

Pre-employment testing has been consistently upheld in the courts as a condition of employment. Always obtain consent and notify the applicant that it is a requirement for employment. Your testing policy for current employees, however, must be set forth in your written policy, which must comply with the current statutory law in the jurisdiction in which your workers perform their duties. Methods could include, but are not limited to, random testing, testing after an on-the-job accident, and testing of certain employees in safety-sensitive positions.

Bottom Line:

Drug and alcohol testing can cost an employer in the range of $50-$80 per test. When compared, however, to the many different types of costs to your organization that result from just one employee with a drug or alcohol problem, your organization’s testing program will be more than worth the testing costs.