By Adam Hall, Staff Writer & Editor
Understanding the Regulatory Hierarchy
The hottest news in the drug testing industry is that the Department of Justice (DOJ) has initiated the process to reclassify marijuana as a lower-risk drug. Regardless of personal feelings about this change, it is important to recognize that this change is happening at a federal level. Although federal drug testing regulations have long been viewed as the industry standard, other regulatory entities continue to carry significant weight in drug testing.
If you view regulatory agencies as a hierarchy, federal regulations would likely be at the top of that list. Descending the ladder of perceived authority, next are state laws or statutes, city or municipal requirements, contractual requirements, and finally company policies. Regardless of where a regulatory entity sits on the ladder, if their established rules are applicable to an employer, an employer may not disregard those requirements. In this article we will review some of the key regulators an employer may need to comply with, along with a few illustrative examples of how varying levels of regulation can impact employers.
Federal Regulations
Federal regulations are often associated with the Department of Transportation (DOT), as this department is entirely responsible for the nation’s transportation industry, which many employers operate within. The DOT umbrella covers transportation agencies such as Federal Motor Carriers Safety Administration (FMCSA), Federal Aviation Administration (FAA), and Federal Railroad Administration (FRA) to name a few. However, federal regulations apply to more than just transportation.
Other federal agencies exist outside of the DOT, and each agency has its own set of rules. Different from DOT requirements, other federal organizations have unique regulations to which they must adhere. For example, the Nuclear Regulatory Commission (NRC) follow rules that apply specifically to their field. Similarly, the Department of Health and Human Services (HHS) also has field-specific requirements. All employers working under any federal agency should be aware of the drug testing requirements they must comply with.
State Requirements
Each state in the US is afforded the opportunity to develop and enforce their own set of drug testing requirements. State officials can decide if these requirements should be written into law, and therefore made mandatory and have defined consequences. Alternatively, state statutes may be labeled as voluntary and left to the employer to decide if they want to adhere to the statute or not. Voluntary statutes often come with pro-employer perks, such as discounted insurance rates, or state protection following a violation.[1] Additionally, whether they have mandatory or voluntary laws, some states may require employers to comply with DOT or other federal regulations as part of their drug-free workplace law(s).
Examples of states that have voluntary drug testing laws include Arkansas, Idaho, and Georgia. In these states, employers who meet the requirements of the state law can qualify for a discount on workers’ compensation insurance premiums. Examples of states that have mandatory drug testing laws include Connecticut, Hawaii, and Iowa. The restrictions identified in mandatory states may differ and can range from limitations during certain testing scenarios to the substances included in a test panel.
City or municipal requirements can often just be an extension of state requirements. In many cases, municipal rule makers may identify a specific testing need that is not mentioned in state requirements and will usually have the autonomy to adopt and enforce specific rules that target their specific needs.
Contractual Requirements
Many companies operate as a subcontractor providing services to a larger general contractor. It is likely that each individual subcontractor has their own company policy which governs their personnel. However, in most cases subcontractors will also have to adhere to the requirements set forth by the general contractor.
Consider the following example. One subcontractor’s company policy dictates that each employee must complete a 5-panel pre-employment test prior to performing company duties. The general contractor’s policy dictates that all personnel, including direct employees and subcontractors, must complete a more extensive 10-panel test prior to performing company duties. In most cases, when the company policies do not align, the subcontractor must conform to the general contractor’s requirements. This can be accomplished by altering the subcontractor’s policy to mirror the general contractors, or by requiring multiple tests to be conducted to satisfy the requirements of both policies.
Company Policies
At the bottom of the hierarchal list, but no less important than any other regulatory entity, is company policy. Company policies are unique to each employer, allowing them to determine what type of drug testing program is best for their organization. Policies may be influenced by other regulations, such as if a company employs both federal and non-federal employees. All requirements can be rolled into one policy, or multiple policies may be implemented to address specific needs.
Conclusion
Regulations are not limited to the four different entities identified in this article. Other requirements outside of these examples may be applicable to an organization depending on their specific situation. It is important for employers to be aware of the varying levels of regulatory entities, and how those requirements can impact their organization. Want to ensure your policy is up-to-date and compliant with all applicable requirements? Contact the Current Consulting Group at policy@currentconsultinggroup.com to learn more about our policy services.
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[1] Want a more in-depth look at state law types and how they work together? Check out the following article: https://www.currentconsultinggroup.com/understanding-state-laws/.
