39-2-208. Qualified testing program -- allowable types -- procedures. Each of the following activities is permissible in the implementation of a qualified testing program:
     (1) An employer may test any prospective employee as a condition of hire.
     (2) An employer may use random testing if the employer's controlled substance and alcohol policy includes one or both of the following procedures:
     (a) An employer or an employer's representative may establish a date when all salaried and wage-earning employees will be required to undergo controlled substance or alcohol tests, or both.
     (b) An employer may manage or contract with a third party to establish and administer a random testing process that must include:
     (i) an established calendar period for testing;
     (ii) an established testing rate within the calendar period;
     (iii) a random selection process that will determine who will be tested on any given date during the calendar period for testing;
     (iv) all supervisory and managerial employees in the random selection and testing process; and
     (v) a procedure that requires the employer to obtain a signed statement from each employee that confirms that the employee has received a written description of the random selection process and that requires the employer to maintain the statement in the employee's personnel file. The selection of employees in a random testing procedure must be made by a scientifically valid method, such as a random number table or a computer-based random number generator table.
     (3) An employer may require an employee to submit to followup tests if the employee has had a verified positive test for a controlled substance or for alcohol. The followup tests must be described in the employer's controlled substance and alcohol policy and may be conducted for up to 1 year from the time that the employer first requires a followup test.
     (4) An employer may require an employee to be tested for controlled substances or alcohol 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 consumption. An employer shall comply with the supervisory training requirement in 49 CFR, part 382.603, whenever the employer requires a test on the basis of reasonable suspicion.
     (5) An employer may require an employee to be tested for controlled substances or alcohol 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 that has caused death or personal injury or property damage in excess of $1,500.

     History: En. Sec. 4, Ch. 521, L. 1997.