State Law > Alaska > Alaska Drug Testing Law

Alaska Drug Testing Law

 

Alaska has drug testing laws concerning employers generally, and drug testing laws concerning school bus drivers in the following sections of the Alaska Statutes. The drug and alcohol testing law for employers can be found at Title 23, Chapter 10, Article 9.

  • AS 23.10.600. Employer Protection From Litigation.
  • AS 23.10.615. Employer's Compliance Voluntary.
  • AS 23.10.620. Employer Policy.
  • AS 23.10.640. Testing Procedures.
  • AS 23.10.660. Confidentiality of Results; Access to Records.

AS 23.10.600. Employer Protection From Litigation.

(a) If an employer has established a drug and alcohol testing policy and initiated a testing program under AS 23.10.600 - 23.10.699, a person may not bring an action for damages against the employer for

(1) actions in good faith based on the results of a positive drug test or alcohol impairment test;

(2) failure to test for drugs or alcohol impairment or failure to test for a specific drug or another controlled substance;

(3) failure to test or, if tested, failure to detect a specific drug or other substance, a medical condition, or a mental, emotional, or psychological disorder or condition; or

(4) termination or suspension of a drug or alcohol prevention or testing program or policy.

(b) A person may not bring an action for damages based on test results against an employer who has established and implemented a drug and alcohol testing program under AS 23.10.600 - 23.10.699 unless the employer's action was based on a false positive test result and the employer knew or clearly should have known that the result was in error and ignored the true test result because of reckless or malicious disregard for the truth or the wilful intent to deceive or be deceived.

(c) In a claim, including a claim under AS 23.10.600 - 23.10.699, if it is alleged that an employer's action was based on a false positive test result,

(1) there is a rebuttable presumption that the test result was valid if the employer complied with the provisions of AS 23.10.600 - 23.10.699; and

(2) the employer is not liable for monetary damages if the employer's reliance on a false positive test result was reasonable and in good faith.

(d) A person may not bring an action for damages against an employer for an action taken related to a false negative drug test or alcohol impairment test.

(e) A person may not bring an action against an employer based on failure of the employer to establish a program or policy on substance abuse prevention or to implement drug testing or alcohol impairment testing.

AS 23.10.610. Limits On Causes of Action For Disclosures.
A person may not bring an action for defamation of character, libel, slander, or damage to reputation against an employer who has established a program of drug testing or alcohol impairment testing under AS 23.10.600 - 23.10.699 if the action is based on drug or alcohol testing unless

(1) the results of the test were disclosed to a person other than the employer, an authorized employee, agent or representative of the employer, the tested employee, the tested prospective employee, or another person authorized or privileged by law to receive the information;

(2) the information disclosed was a false positive test result;

(3) the false positive test result was disclosed negligently; and

(4) all elements of an action for defamation of character, libel, slander, or damage to reputation as established by law are satisfied.

AS 23.10.615. Employer's Compliance Voluntary.
Compliance with AS 23.10.600 - 23.10.699 by employers is voluntary.

AS 23.10.620. Employer Policy.

(a) Under AS 23.10.600 - 23.10.699, an employer may only carry out the testing or retesting for the presence or evidence of use of drugs or alcohol after adopting a written policy for the testing and retesting and informing employees of the policy. The employer may inform employees by distributing a copy of the policy to each employee subject to testing or making the policy available to employees in the same manner as the employer informs its employees of other personnel practices, including inclusion in a personnel handbook or manual or posting in a place accessible to employees. The employer shall inform prospective employees that they must undergo drug testing.

(b) The written policy on drug and alcohol testing must include, at a minimum,

(1) a statement of the employer's policy respecting drug and alcohol use by employees;

(2) a description of those employees or prospective employees who are subject to testing;

(3) the circumstances under which testing may be required;

(4) the substances as to which testing may be required;

(5) a description of the testing methods and collection procedures to be used, including an employee's right to a confirmatory drug test to be reviewed by a licensed physician or doctor of osteopathy after an initial positive drug test result in accordance with AS 23.10.640 (d);

(6) the consequences of a refusal to participate in the testing;

(7) any adverse personnel action that may be taken based on the testing procedure or results;

(8) the right of an employee, on the employee's request, to obtain the written test results and the obligation of the employer to provide written test results to the employee within five working days after a written request to do so, so long as the written request is made within six months after the date of the test;

(9) the right of an employee, on the employee's request, to explain in a confidential setting, a positive test result; if the employee requests in writing an opportunity to explain the positive test result within 10 working days after the employee is notified of the test result, the employer must provide an opportunity, in a confidential setting, within 72 hours after receiving the employee's written notice, or before taking adverse employment action;

(10) a statement of the employer's policy regarding the confidentiality of the test results.

(c) An employer may require the collection and testing of a sample of an employee's or prospective employee's urine or breath for any job-related purpose consistent with business necessity and the terms of the employer's policy, including

(1) investigation of possible individual employee impairment;

(2) investigation of accidents in the workplace; an employee may be required to undergo drug testing or alcohol impairment testing for an accident if the test is taken as soon as practicable after an accident and the test is administered to employees who the employer reasonably believes may have contributed to the accident;

(3) maintenance of safety for employees, customers, clients, or the public at large;

(4) maintenance of productivity, the quality of products or services, or security of property or information;

(5) reasonable suspicion that an employee may be affected by the use of drugs or alcohol and that the use may adversely affect the job performance or the work environment.

(d) In addition to tests required under (c) of this section, an employer may require employees or groups of employees to undergo drug testing on a random or chance basis.

(e) If an employer institutes a policy of drug testing or alcohol impairment testing under AS 23.10.600 - 23.10.699, the policy must identify which employees or positions are subject to testing. An employer must test all or part of the work force based on consideration of safety for employees, customers, clients, or the public at large. An employer may not initiate a testing program under AS 23.10.600 - 23.10.699 until at least 30 days after the employer notifies employees of the employer's intent to implement the program and makes written copies of the policy available as required by (a) of this section.

(f) The provisions of AS 23.10.600 - 23.10.699 may not be construed to discourage, restrict, limit, prohibit, or require on-site drug testing or alcohol impairment testing.

AS 23.10.630. Collection of Samples.

(a) An employer may test an employee for the presence of drugs or for alcohol impairment. An employer may test a prospective employee for the presence of drugs.

(b) In order to test reliably, an employer may require an employee or prospective employee to provide a sample of the individual's urine or breath and to present reliable individual identification to the person collecting the sample. Collection of the sample must conform to the requirements of AS 23.10.600 - 23.10.699. The employer may designate the type of sample to be used for testing.

(c) An employer shall normally schedule a drug test or an alcohol impairment test of employees during, or immediately before or after, a regular work period. Alcohol impairment or drug testing required by an employer is considered to be work time for the purposes of compensation and benefits for current employees. Sample collection shall be performed in a manner that guarantees the individual's privacy to the maximum extent consistent with ensuring that the sample is not contaminated, adulterated, or misidentified.

(d) An employer shall pay the entire actual costs for drug testing and alcohol impairment testing required of employees and prospective employees. An employer shall also pay reasonable transportation costs to an employee if the required test is conducted at a location other than the employee's normal work site.

AS 23.10.640. Testing Procedures.

(a) Sample collection and testing for alcohol impairment and drugs under AS 23.10.600 - 23.10.699 shall be performed under reasonable and sanitary conditions. The person collecting samples shall document the sample, including labeling the sample to preclude to the extent reasonable the possibility of misidentification of the person tested in relation to the test result provided, and shall provide the person to be tested with an opportunity to provide medical information that may be relevant to the test, including identifying current or recently used prescription and nonprescription drugs.

(b) Sample collection, storage, and transportation to the place of testing shall be performed in a manner reasonably designed to preclude the possibility of sample contamination, adulteration, or misidentification.

(c) Sample testing must comply with scientifically accepted analytical methods and procedures. Except for on-site testing under AS 23.10.645 , drug testing shall be conducted at a laboratory approved or certified by the Substance Abuse and Mental Health Services Administration or the College of American Pathologists, American Association of Clinical Chemists.

(d) Drug testing, including on-site drug testing, must include confirmation of a positive drug test result. The confirmation must be by use of a different analytical process than was used in the initial drug screen. The second or confirmatory drug test shall be a gas chromatography mass spectrometry. An employer may not rely on a positive drug test unless the confirmatory drug test results have been reviewed by a licensed physician or doctor of osteopathy. The physician or osteopath shall

(1) contact the employee within 48 hours and offer an opportunity to discuss the confirming test result;

(2) interpret and evaluate the positive drug test results for legal use; and

(3) report test results that have been caused by prescription medication as negative.

(e) A drug test conducted under this section or in an on-site test under AS 23.10.645 for a drug for which the United States Department of Health and Human Services has established a cutoff level shall be considered to have yielded a positive result if the test establishes the presence of the drug at levels equal to or greater than that cutoff level. For a drug for which the United States Department of Health and Human Services has not established a cutoff level, the employer shall, in the written policy under AS 23.10.620 , inform employees of the cutoff level that the employer will use to establish the presence of the drug.

AS 23.10.645. On-Site Testing.

(a) An employer may include on-site drug and alcohol tests of employees and prospective employees as part of the employer's drug and alcohol testing policy under AS 23.10.600 - 23.10.699. In on-site testing under this section, an employer may only use products approved by the Food and Drug Administration for employee testing and shall use the products in accordance with the manufacturer's instructions. On-site testing under this section may only be conducted by a test administrator who is certified under AS 23.10.650 (b).

(b) In on-site testing under this section, the specimen to be tested must be kept in sight of the employee or applicant who is the subject of the test. The test administrator shall

(1) conduct the test in a manner that allows the subject of the test to observe the testing procedure and the results; in the case of a sight-impaired employee, the employee may request the presence of an observer; however, the test administrator is not required to delay collection of the sample or administration of the test because of the sight-impaired employee's request;

(2) complete the sample documentation required under AS 23.10.640 (a);

(3) prepare a written record of the results of the on-site test.

(c) An employer may not take permanent employment action against an employee based on an unconfirmed, screen, positive on-site test result. If an employer takes temporary adverse employment action based on an on-site test result, the employer shall restore the employee's wages and benefits if the confirmatory test result is negative or if the employee demonstrates that the positive test result was caused by drugs taken in accordance with a valid prescription of the employee or by lawful nonprescription drugs.

AS 23.10.650. Training of Test Administrators.

(a) Each employer shall ensure that at least one designated employee receives at least 60 minutes of training on alcohol misuse and at least an additional 60 minutes of training on the use of controlled substances. The training will be used by the designee to determine whether reasonable suspicion exists to require an employee to undergo testing under AS 23.10.630 .

(b) If an employer administers on-site drug or alcohol tests to test employees or prospective employees under AS 23.10.645 , the employer shall ensure that each person who will be administering the on-site test receives training and meets the qualifications of this subsection. An on-site test administrator must

(1) have been trained by the manufacturer of the test or the manufacturer's representative on the proper procedure for administering the test and accurate evaluation of on-site test results; training must be conducted in person by a trainer from the manufacturer or the manufacturer's representative;

(2) be certified in writing by the manufacturer or the manufacturer's representative as competent to administer and evaluate the on-site test;

(3) have been trained to recognize adulteration of a sample to be used in on-site testing; and

(4) sign a statement that clearly states that the on-site test administrator will hold all information related to any phase of a drug test confidential.

AS 23.10.655. Disciplinary Procedures.

(a) An employer may take adverse employment action based on

(1) a positive drug test or alcohol impairment test result that indicates a violation of the employer's written policy;

(2) the refusal of an employee or prospective employee to provide a drug testing sample; or

(3) the refusal of an employee to provide an alcohol impairment testing sample.

(b) Adverse employment action under (a) of this section may include

(1) a requirement that the employee enroll in an employer provided or employer approved rehabilitation, treatment, or counseling program; the program may include additional drug testing and alcohol impairment testing; the employer may require participation in the program as a condition of employment; costs of participating in the program may or may not be covered by the employer's health plan or policies;

(2) suspension of the employee, with or without pay, for a designated period of time;

(3) termination of employment;

(4) in case of drug testing, refusal to hire a prospective employee; and

(5) other adverse employment action.

AS 23.10.660. Confidentiality of Results; Access to Records.
A communication received by an employer relevant to drug test or alcohol impairment test results and received through the employer's testing program is a confidential and privileged communication and may not be disclosed except

(1) to the tested employee or prospective employee or another person designated in writing by the employee or prospective employee;

(2) to individuals designated by an employer to receive and evaluate test results or hear the explanation of the employee or prospective employee; or

(3) as ordered by a court or governmental agency.

AS 23.10.670. Effect of Mandatory Testing Obligations.

An employer who is obligated by state or federal requirements to have a drug testing or alcohol impairment testing policy or program shall receive the full benefits of AS 23.10.600 - 23.10.699 even if the required policy or program is not consistent with AS 23.10.600 - 23.10.699, so long as the employer complies with the state or federal requirements applicable to the employer's operations.

AS 23.10.699. Definitions.
In AS 23.10.600 - 23.10.699,

(1) "alcohol" means ethanol, isopropanol, or methanol;

(2) "drugs" means a substance considered unlawful under AS 11.71 or the metabolite of the substance;

(3) "drug testing" means testing for evidence of the use of a drug;

(4) "employee" means a person in the service of an employer;

(5) "employer" means a person who employs one or more full-time employees under a contract of hire, express or implied, oral or written;

(6) "good faith" means reasonable reliance on fact, or that which is held out to be factual, without the intent to deceive or be deceived and without reckless or malicious disregard for the truth;

(7) "prospective employee" means a person who has made application to an employer, whether written or oral, to become an employee;

(8) "random" means a scientifically valid method that ensures that all covered employees have an equal chance of being selected;

(9) "sample" means urine or breath from the person being tested.

School Bus Drivers

AS 14.09.025. Drug Testing For School Bus Drivers.

(a) A school district or regional educational attendance area that provides for the transportation of pupils shall require that the drivers of motor vehicles used to transport pupils submit to testing for the use of drugs and alcohol. The testing program must include random testing. A driver who tests positive for the improper use of drugs or alcohol may be disciplined, including termination from employment.

(b) For a driver who is not required to have a commercial driver's license, an employer

(1) shall keep and maintain records of the testing for improper use of drugs or alcohol on a confidential basis and may only release the results with the written consent of the employee; and

(2) may not retain false positive test results in the employee's employment records and may not release information about a false positive test without the written consent of the employee.

(c) The department shall adopt regulations to implement this section. The regulations must include a provision for a hearing before discipline is imposed.

(d) In this section, "improper use of drugs or alcohol" means use that constitutes a criminal offense and use that violates regulations adopted by the department under this section.

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Related Articles

12/14/2008 Alaska Drug Testing Law - AS 23.10.600. Employer Protection From Litigation.
12/13/2008 Alaska Drug Testing Law - AS 23.10.610. Limits On Causes of Action For Disclosures.
12/05/2008 Alaska Drug Testing Law - 23.10.630. Collection of Samples
12/05/2008 Alaska Drug Testing Law - 23.10.640. Testing Procedures
12/05/2008 Alaska Drug Testing Law - 23.10.645. On-Site Testing
12/05/2008 Alaska Drug Testing Law - 23.10.650. Training of Test Administrators
12/05/2008 Alaska Drug Testing Law - 23.10.655. Disciplinary Procedures
12/05/2008 Alaska Drug Testing Law - 23.10.660. Confidentiality of Results; Access to Records
12/05/2008 Alaska Drug Testing Law -23.10.670. Effect of Mandatory Testing Obligations
12/05/2008 Alaska Drug Testing Law - 23.10.699. Definitions
12/05/2008 Alaska Drug Testing Law - 14.09.025. Drug Testing for School Bus Drivers
12/04/2008 Alaska Drug Testing Law - 23.10.600. Employer Protection From Litigation
12/04/2008 Alaska Drug Testing Law - 23.10.610. Limits on Causes of Action for Disclosures
12/04/2008 Alaska Drug Testing Law - 23.10.615. Employer's Compliance Voluntary
12/04/2008 Alaska Drug Testing Law - 23.10.620. Employer Policy
 

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