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Tools for drug testing: Oklahoma employers encouraged to update policies for new law [Journal Record (Oklahoma City, OK)]
[July 27, 2011]

Tools for drug testing: Oklahoma employers encouraged to update policies for new law [Journal Record (Oklahoma City, OK)]

(Journal Record (Oklahoma City, OK) Via Acquire Media NewsEdge) Employers should update their drug testing policies now to take full advantage of a beneficial state law taking effect Nov. 1.

"If you don't change your policy by Nov. 1, you are contractually obligating yourself to the old law after Nov. 1," said McAfee & Taft attorney Charles S. Plumb. "This is a good time to kind of wipe the slate clean and ask ourselves, 'What do we need as far as drug testing?'" While employers face no deadline for changing their workplace drug testing policies, putting off this alignment prevents them from taking advantage of several improvements designed to help businesses improve workplace safety and better contain their unemployment and workers' compensation costs, all by streamlining employee drug testing regulations.

Revising these policies now would allow employers to communicate those rules to their staffs by Oct. 15, meeting notification requirements.

"It is a big win for employers," Plumb told a Wednesday morning Tulsa Metro Chamber HR Forum audience. "It makes it simple, more straightforward. It looks like it was written by real people." These changes came with House Bill 2033, a new law championed in the last legislative session by District 19 state Sen. Patrick Anderson, R-Enid. The senator said the proposals passed the Senate without a dissenting vote.

"This bill went through fast," he said. "We had to rewrite the workers' compensation bill because of changes made in this bill." Anderson pinned that success on supporting Occupational Safety and Health Administration statistics outlining workplace drug usage problems, and on the involvement of business leaders seeking change.

"It was an easy sell," he said. "When you look at the statistics, everyone was on the same page trying to solve the problem." Plumb said complexities in the state's current law helped employees that were fired over positive drug tests to claim unemployment benefits. The current law also featured a number of technicalities that employers sometimes failed to meet, fueling employee legal challenges and reinstatements despite testing positive.

Plumb said the new law - written in a simpler language despite the involvement of 24 attorneys - should make it easier to seek and enforce drug testing, eliminating the required list of substances and introducing "for cause" testing while replacing the "reasonable suspicion" test with "reasonable belief." "You don't want it to be technical," Plumb said of the new law. "You want your employees to get it. We're not trying to trick people. We're trying to keep it simple for both employers or employees." The new law outlines six areas for requiring drug testing, with broad definitions to account for patterns of negative performance, suspicions of test result tampering or excessive unexplained absentees or tardiness.

"This is an important tool for employers to keep a safe workplace and I would put that in my policy," said Plumb. "You never know when you might need it." Anderson said OSHA statistics demonstrated how such signs often point to drug or alcohol abuse.

"This was a pretty significant change to me," said Plumb. "It's not Nazi Germany. You can't do this unfairly, but if you have reason to observe these events and think they're substance abuse-related, you have the right to have a test." The law also establishes how employers may apply drug testing policies to subcontractor employees.

"This is relatively unique for Oklahoma when compared to other states, but it makes sense to me," said Plumb.

"You're going to have to know your rights and responsibilities before you can even talk to your employees about it, which means getting the lawyers involved," said State Chamber of Oklahoma Senior Vice President Mike Seney.

"Which I consider job security," Plumb said.

Among other issues, Plumb outlined pro-employer changes concerning evolving testing systems, disciplinary actions, attorneys' fees and criminal provisions. But Seney said more changes will be sought from the next Legislature to settle misconduct concerns with the Oklahoma Employment Security Commission.

"It's a one-sentence, two-sentence clarification," he said. "The OESC is throwing up every roadblock they can on this issue. We're just going to have a discussion on this.

"They see that as their real mission is to ensure benefits are paid," Seney said. "Anything outside that is an exception." (c) 2011 ProQuest Information and Learning Company; All Rights Reserved.

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