The document outlines drug testing policies and procedures for pre-employment, random testing of employees required to have a commercial driver's license, reasonable suspicion testing, and outlines protections under the Americans with Disabilities Act. Employers are permitted to conduct drug testing if certain conditions are met to ensure a drug-free workplace while complying with state and federal regulations. The document provides guidance on testing procedures and appropriate responses to positive test results.

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. PRE-EMPLOYMENT

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 conductedConditions 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. Therefore…

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: www.dot.gov/ost/dapc 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 sgraham@interimhrvt.com (802) 279-1117