By Yvette Farnsworth Baker, Esq., Senior Legal Consultant

Voluntary Testing Laws: Boon or Bane

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To people who are unfamiliar with the lingo of the drug testing industry, the term “voluntary law” usually elicits a laugh. Most can think of a lot of laws they wish were optional! In the case of workplace drug testing, a voluntary law is one for which the government offers an incentive to comply. This article will explore voluntary state drug testing laws and will consider when it might make financial sense for a company to elect not to comply with the voluntary law.

What Is a Voluntary Law?

Most voluntary state drug testing laws offer a discount on workers’ compensation insurance premiums as an incentive to comply. The majority of voluntary laws allow a 5% discount on premiums for compliant programs. However, there are a handful of states that offer more, including Ohio (up to 7% for the advanced level testing program), Georgia (up to 7.5%), Wyoming (up to 10%), and Delaware (up to 19%). Additionally, Idaho’s voluntary law allows insurers to determine the discount amount and does not establish a standard.

Some voluntary testing laws offer immunity from certain types of lawsuits as an incentive to comply with the state testing program. In some states, legal immunity is offered in addition to the insurance premium discount, but there are some states which offer only legal immunity and no premium discount in their voluntary law(s). For example, Utah’s voluntary law does not offer an insurance premium discount, but does establish that an employer cannot be sued for a workplace drug test that complied with the voluntary law. If an employee alleges that the results of a drug test are inaccurate, an employer is not liable for monetary damages if the employer relied on a compliant drug test result in good faith.[1]

How to Comply With a Voluntary Law

Most voluntary laws establish testing procedures that must be followed in order to receive the incentive. Some states’ voluntary law requirements are more extensive than others, with laws falling on every point on the spectrum. To receive the benefit of an insurance premium discount, an employer must usually file paperwork to show they are in compliance and may be subjected to physical verification by the insurer.

When to Comply

While the benefits of compliance with a voluntary drug testing law are a great incentive, occasionally employers may want to consider whether there are even more benefits to be gained from testing outside the requirements of a state’s voluntary law. For example, some state voluntary laws restrict on-site, point of collection testing, and require testing be conducted by a laboratory. Examples of such voluntary laws are Alabama, Arkansas, Kentucky, Ohio, and Tennessee. An employer might decide that the benefits, either financial or otherwise, of conducting on-site point of collection testing are greater than the benefits offered by the state’s voluntary law. An employer might calculate that the ability to collect on-site with an almost immediate result saves valuable time and money, which outweighs the benefits offered by the voluntary law. In such a case, the employer would be shrewd to consider opting out of the voluntary law.

This same scenario could play out with various aspects of a state’s voluntary law. Sample types may be restricted in a voluntary law, such as in Florida. A voluntary law may require that all paid employees be tested, including upper-level management, as is required in Utah. Use of a Medical Review Officer (MRO) may be required, as it is in the voluntary laws of Mississippi and Tennessee. An employer may wish to reduce costs or inconvenience by cutting such components of their program if the benefits of doing so outweigh the benefits of the voluntary law.

Conclusion

Voluntary drug testing laws are a great benefit offered to employers in some states. They can help employers implement legally defensible and high-quality drug testing programs, and can offer great financial benefits at the same time. However, employers should also consider testing that is available outside the voluntary programs when determining what testing is the right fit for their company.

Unsure of what type of law(s) the state(s) in which you operate have? Check out CurrentCompliance.org, the industry’s only subscription database of workplace drug and alcohol testing laws.

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