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Arkansas Drug Testing

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Arkansas drug testing laws

Arkansas does not have statutory provisions regarding drug testing, but it does have a drug-free workplace law. Under this law, all employees and applicants must be informed prior to receiving a drug or alcohol test from an employer. In addition, all employees must be given a written policy statement that contains the following:

  • 1. The company’s drug or alcohol use policy.
  • 2. A statement advising of the drug-free workplace law.
  • 3. A confidentiality statement.
  • 4. Procedures for confidentially reporting the use of prescription or non-prescription medications following a positive test result.
  • 5. The consequences of refusing to submit to testing.
  • 6. A statement advising of the company’s employee assistance program or other assistance resources.
  • 7. An explanation of the employee’s right to contest or explain a positive test result within five working days after written notification of the positive test result is received.
  • 8. A statement explaining that the testing laboratory must be informed of any administrative or civil action brought under the law.
  • 9. A list of all reasons for which an employer may conduct a drug test.
  • 10. A statement regarding any applicable collective bargaining agreement or contract regarding drug testing, and any right to appeal to a court.
  • 11. A statement explaining the employee’s right to consult about technical information regarding prescription or non-prescription medications.

It is unlawful to require an applicant or employee, as a condition of employment or continued employment, to submit to a drug test unless the test is provided at no cost, which means the employer must pay. A free copy of the examiner’s report must be given to the applicant or employee upon request. If an employee tests positive for illegal drugs, the employer and employee may agree in writing who will bear the cost of any future drug tests required as a condition of continued employment.

Arkansas employers with a drug-free workplace program in place must test employees in the following circumstances: after an accident that results in injury, on reasonable suspicion of drug use as part of a routinely scheduled fitness-for-duty medical examination, and as a follow-up to a required rehabilitation program.

Notice and procedural rights for Arkansas employees

An employer who conducts drug testing must give all employees a copy of its policy, and employees must have at least 60 days notice before any new program is implemented. Employees who test positive have five days to contest or explain the result. State laws also require employers to use certain procedures for gathering specimens, testing, maintaining confidentiality, and so on.

Legal claims arising from drug testing

Even though Arkansas Drug Laws allow an employer to drug test, many employees may have legal claims based on how the test was conducted or how the results were used. Employers in Arkansas must follow the state’s requirements for drug and alcohol testing. An Arkansas employer who doesn’t provide the required notice of its testing policy or observe state procedural rights (for example, by failing to conduct a confirmation test after an initial positive result or by allowing unauthorized personnel to perform the test) could face legal problems.

Disability discrimination

An applicant or employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test and the applicant’s medication was legally prescribed for a disability, the company could be liable. The same is true of an employee who is taking a prescribed medication. If he or she tests positive for that drug and is terminated, the company could be liable.

Additionally, if an employer singles out certain groups of employees – for example, by race, age, or gender – for drug testing, the company could face a discrimination claim.

Invasion of privacy

Even an employer who is allowed or required to conduct a drug test might violate employee’s privacy. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.

Defamation

An employee who tests positive for drugs or alcohol might have a valid claim for defamation, if the employer has reason to know that the test might not be accurate. For example, if a retest showed that the first test was a false positive or the employee has appealed the first test, the employer may be liable for revealing the results of the positive test beyond those with a need to know.

Workers’ compensation and drug testing

The Workers’ Health and Safety Division of the Workers’ Compensation Commission in Arkansas sets the rules and oversees compliance for employers’ testing programs. Applicability of the program is also subject to the provisions of relevant collective bargaining agreements and federal statutes or regulations.

  • Compliant employers are entitled to a 5% discount on workers’ compensation premiums when they incorporate a drug-free program in their workplace.
  • In order for employers to be granted certification by the director of the Workers’ Health and Safety Division of the Workers’ Compensation Commission, they must apply annually.
  • Employers are allowed to conduct drug or alcohol testing of their job applicants who already have been awarded an actual offer for employment.
  • If an employee will be operating a commercial vehicle, drug testing must conform to Department of Transportation procedures and regulations to include only amphetamines, cocaine, marijuana, PCP and opiates, as well as alcohol.
  • All costs of initial and confirmatory drug or alcohol testing required by the employer should occur at the employer’s expense. Conversely, additional tests not required by the employer but requested by the employee are payable by the employee or job applicant.
  • Employers may take adverse employment action without restrictions based on a confirmed positive test result.
  • Employers are required to provide relevant educational materials to all employees regarding how to maintain a drug-free workplace. Employees are required to sign an acknowledgment of receipt for the company policy.