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Each of the following activities is permissible in the implementation of a qualified drug or alcohol testing program:

1. Applicant testing: An employer may test any prospective employee as a condition of hire.

2. Random testing: An employer may use random testing if the employer's controlled substance and alcohol policy includes one or both of the following procedures: (a) an employer or an employer's representative may establish a date when all salaried and wage-earning employees will be required to undergo controlled substance or alcohol tests, or both; (b) An employer may manage or contract with a third party to establish and administer a random testing process.

3. Follow-up testing: An employer may require an employee to submit to follow-up tests if the employee has had a verified positive test for a controlled substance or for alcohol.

4. Reasonable suspicion testing: An employer may require an employee to be tested for controlled substances or alcohol if the employer has reason to suspect that an employee's faculties are impaired on the job as a result of the use of a controlled substance or alcohol consumption.

5. Post-accident testing: An employer may require an employee to be tested for controlled substances or alcohol if the employer has reason to believe that the employee's act or failure to act is a direct or proximate cause of a work-related accident that has caused death or personal injury or property damage in excess of $1,500.


Procedure.--An employer must provide an employee who has been tested under any qualified testing program described above with a copy of the test report. The employer is also required to obtain, at the employee's request, an additional test of the urine split sample by an independent lab selected by the person tested. The employer must pay for the additional tests if the additional test results are negative, and the employee must pay for them if the additional test results are positive. The employee must be provided the opportunity to rebut or explain the results of any test.

No adverse action, including follow-up testing, may be taken by an employer if an employee presents a reasonable explanation or medical opinion indicating that the original test results were not caused by illegal use of controlled substances or by alcohol consumption. If the employee presents a reasonable explanation or medical opinion, the test results must be removed from the employee's record and destroyed.

Qualified testing programs must meet other procedural requirements imposed by the law.

Oral Fluids Testing Permitted; DOT Regulations Mirrored - Permitted specimen testing had been restricted to urine and breath, and now is expected to include oral fluids. Procedural requirements have to be at least as stringent as 49 CFR, part 40 (the DOT regulations) in regard to: (1) samples not covered by 49 CFR, part 40; (2) the testing program; and (3) the collection, transport, chain of custody, and confirmatory testing of non-urine samples. Finally, the testing methodology must be approved by the U.S. Food and Drug Administration.