Alaska Drug Testing
Statute
AS 23.10.600 - AS 23.10.699
Sec. 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 willful 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.
Sec. 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.
Sec. 23.10.615. Employer's compliance voluntary.
Compliance with AS 23.10.600 - 23.10.699 by employers is voluntary.
Sec. 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 (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 AS23.10.600 - 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.
Sec. 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.
Sec. 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 AS23.10.620 , inform employees of the cutoff level
that the employer will use to establish the presence of the drug.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
If any errors are found, please e-mail Alaska
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