(as
published in the Western Business Journal)
These Drug and Alcohol Testing Employees in Montana Drug testing of employees is fast becoming standard practice in America. In Montana, employee drug and alcohol testing is statutorily governed by the "Workforce Drug and Alcohol Testing Act" (the Montana Act), which was enacted by the Montana Legislature in 1997. Its variances from the general rules in the rest of the country are extremely noteworthy. If your company currently has a drug and alcohol testing program, its guidelines may need to be revisited, and if you are considering implementing such a program, special attention should be paid to this unique Montana law.
The Montana Act distinguishes Montana policy from that of other states. By definition, an "employee" is one who is engaged in the performance, supervision, or management of work in a hazardous work environment, security position, position affecting public safety, or fiduciary position for an employer and does not include an independent contractor. Thus, the Montana Act does not apply to all employees.
Montana broadly defines "prospective employee", and generally allows pre-employment testing of job applicants. The first question in deciding whether to implement a drug and alcohol testing program, is to determine if your employees may legally be tested. Of course, the Montana Act defers to mandatory drug and alcohol testing under federal law. Federal law requires that aviation, commercial motor carrier, railroad, pipeline, and commercial marine employees be tested. Other employees who can be tested under the Montana Act, because they fall under the umbrella of a hazardous work environment, include those who operate or work in close proximity to construction equipment, industrial machinery, or mining activities, or handle flammable materials, explosives, or toxic chemicals. The Montana Act also covers employees who are in a security position, or employees in a fiduciary position with the employer.
Note how select this group of testable employees is. Be aware that if an employee is fired for refusing to submit to a test which that employee was not legally required to undergo, he or she could have a valid wrongful discharge claim against the employer.
Perhaps the most important part of implementing a new drug and alcohol testing program is developing a written policy that both explains the testing program and complies with the Montana Act. A program that complies with the Montana Act is termed a "Qualified Testing Program", and is the only type of program that may be used to test employees in Montana.
The written policy gives notice to the employees, and must include a myriad of provisions, including such things as sanctions associated with a positive test, the employer's standard of conduct, and a detailed description of the procedures that will be used to conduct the testing program. Careful preparation of the policy is essential to the success of the program.
Under the Montana Act, several kinds of tests may be administered. As previously discussed, pre-employment testing of virtually any applicant seems to be permitted. Employees, as defined by the Montana Act, may also be administered random tests, which must meet several requirements to be permitted under a Qualified Testing Program. If an employee has had a verified positive test, followup tests may be administered. Reasonable suspicion tests are permitted, 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. Post-accident tests may also be administered, 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. The results of the tests carried out under a Qualified Testing Program must be strictly confidential, and may not be revealed to anyone except the employee, the medical review officer, and the employer's designated representative.
While attempting to create a drug free workplace is a clear advantage of testing, several drawbacks do exist. Several national groups have come out against drug testing, citing studies that indicate that the costs of drug testing exceeds any perceived benefits. These groups also claim that drug testing is unconstitutional, especially in regard to existing employees. False positive results do occur, and occasionally a person can "beat" a test, testing negative when they are in fact using controlled substances.
Implementation or continuation of a drug and alcohol testing program requires the employer to carefully consider a number of complex factors. If you have questions or concerns about drug testing programs please contact the Moulton firm.
| Return to Publication List |
|---|