Ala. Admin. Code r. 480-4-3-.28

Current through Register Vol. 42, No. 8, May 31, 2024

Section 480-4-3-.28 - Disqualification For Testing Positive For Illegal Drugs

(1) An employer will be considered to have met the burden of proving the drug policy satisfies the "otherwise reliable" requirement of Code of Ala. 1975, § 25-4-78(3) a.

(i) if:

(a) The drug policy is delivered to each employee in writing and warns the employee that a positive test result for any illegal drug as listed in the policy could result in dismissal, and the warning contains a statement that either, 1) testing positive; 2) refusal to submit or cooperate with a drug test; or 3) knowingly altering or adulterating the blood, urine or hair sample will result in possible dismissal; and

(b) The drug policy provides for an independent confirmatory test from the same specimen at the request of and at the expense of the employee; and

(c) The drug policy applies to all employees regardless of position or classification, and clearly states the basis on which testing will be conducted, i.e., pre-employment; random; post accident; by a qualified independent laboratory; and further, if additional testing is imposed on some but not all employees, the employer must show a rational basis for such additional testing; and either

1. It is voluntarily conducted and evaluated in accordance with U.S. Department of Transportation in 49 CFR, Part 40 and a copy of the report of the medical review officer is submitted to the Department of Industrial Relations Unemployment Compensation Division with each claim for unemployment compensation filed where separation from employment is alleged to be on account of a drug related separation subject to Section 25-4-78(3) a.

(i); or

2. Provides for the review of laboratory findings by a qualified independent medical review officer, and the submittal of such medical review officer's report to the Unemployment Compensation Division for each claim for unemployment compensation filed where separation from employment is alleged to be on account of a drug related separation subject to Section 25-4-78(3) a.

(i), which shall be prima facie evidence that the laboratory tests are reliable.

(2) The term "Medical Review Officer" (MRO) as used in this rule is defined as a licensed physician who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's positive drug test results including evaluation of his or her medical history and any other biomedical information. Such MRO must not be an employee of a drug testing laboratory unless there is clear separation of functions preventing any conflict of interest and the MRO has no responsibility for a laboratory drug testing or quality control operation.

(3) The following criteria at a minimum must be reviewed by the MRO for the report of a positive test to satisfy the "otherwise reliable" provision of Alabama Code Section 25-4-78(3) a 1978:

(a) Confidentially of medical information and identify of donor.

(b) Maintenance of temperature of specimen within acceptable range. Use of temperature monitored cup that shows consistency of the specimen with the donor's body temperature.

(c) Specific gravity test of specimen.

(d) Maintenance of documented chain of custody (COC) of specimen with certified copy of original COC form to be provided to MRO.

(e) Retention by the laboratory of the original urine specimen and split specimen of the sample for one full year on all positive test.

(f) The use of another individual's prescription drugs whether intentional or not is not a valid explanation for a positive test result.

(g) The facility at which the specimen is collected is recommended to provide the following:

1. have an enclosure for private urination.

2. have a toilet containing colored water for completion of urination.

3. have running water or sink, and

4. a means outside the enclosure for hand washing.

(h) Sealing of the specimen by the collection site person immediately in the presence of the donor.

(i) Integrity of specimen maintained by immediately mailing or maintaining the specimen in secure storage in direct control of the collection site person until it is mailed.

(4) Provisions of Sections (1)(a), (1)(b)1, and (1)(b)2 of this rule notwithstanding, no otherwise reliable drug policy established to cover existing employees shall be applicable to existing employees until a period of thirty calendar days has elapsed from the date the drug policy was made known to such existing employees in writing and acknowledgment in writing received from the employee.

(5) A qualified laboratory for the purposes of this rule is a National Institute on Drug Abuse (NIDA) certified laboratory or if not so certified utilizes gas chromatography and mass spectrometry (GC/MS) testing technique.

(6) Hair Testing

(a) The drug policy provides each employee at his or her expense to obtain for any position test a followup reconfirming test by a certified laboratory designated by the Medical Review Officer that utilizes the same or equivalent testing methods and standards at the laboratory that performed the initial and confirming tests.

(b) The drug policy applies to all similarly-situated applicants or employees regardless of position or classification; clearly states the basis on which drug hair testing will be conducted, i.e., pre-employment, random, monitoring under a rehabilitation agreement or "last change" agreement; by a certified laboratory; if additional testing is conducted on some but not all similarly-situated employees, the employer has rational basis for excluding some but not other similarly-situated employees; provides for review by a qualified independent medical review officer (i.e., a medical review officer not employed by the testing laboratory), and the submittal of such medical review officer's report to the Unemployment Compensation Division for each claim for unemployment compensation filed when separation from employment is alleged to be on account of a drug-related separation subject to § 25-4-78(3) a.

(i), which shall be prima facie evidence that the laboratory tests are reliable.

Author: Byron Abrams, Unemployment Compensation Director

Ala. Admin. Code r. 480-4-3-.28

Emergency Rule: Effective November 23, 1994. New Rule: Filed February 16, 1995; effective March 23, 1995. Amended: Filed February 20, 2002; effective March 27, 2002.

Statutory Authority:Code of Ala. 1975, §§ 25-2-7, 25-2-8, 25-4-111.