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Summary of differences between federal and state regulations
Drug testing law
Rhode Island has a restrictive drug testing law. Pre-employment and reasonable suspicion testing is permitted, but other testing is not allowed. Some industries are exempt from state law.
Types of testing
Pre-employment: Pre-employment tests are allowed after an offer of employment has been made and the offer has been conditioned on the applicant’s negative test result. An employer is not required to comply with these conditions of testing to the extent they are inconsistent with federal law.
The sample must be given in private and positive tests must be confirmed by a certified laboratory.
The pre-employment testing authorized by state law does not apply to state or municipal job applicants, except for law enforcement and correctional officers, firefighters, or positions where testing is required under federal law or required for the continued receipt of federal funds.
Reasonable suspicion: A test may be conducted when the employer has reasonable grounds to believe that an employee may be under the influence of a controlled substance which is impairing an individual's ability to perform a job.
The “reasonable grounds” test must be based on:
- Specific aspects of the employee’s job performance, and
- Specific contemporaneous documented observations concerning the employee’s:
- Appearance
- Speech
- Behavior
These observations must be contemporaneous with the job performance issues (they must exist or occur at the same time).
Testing conditions
The employee must provide the test sample in private.
Positive tests must be confirmed by a federally certified laboratory, by means of gas chromatography/mass spectrometry or technology recognized as being at least as scientifically accurate.
Test results
Test results must be kept confidential. The results of a positive test may be disclosed to other employees with a job-related need to know. They can also be used to defend legal action brought by the employee against the employer.
Consequences
An employee may not be terminated following a first positive drug test unless the individual refuses rehabilitation. Employees must be referred to a rehabilitation program following a positive drug test result. The substance abuse professional can be a licensed physician with knowledge and clinical experience in the diagnosis and treatment of drug related disorders, a licensed or certified psychologist, social worker, or employee assistance program (EAP) professional with like knowledge, or a substance abuse counselor certified by the National Association of Alcohol and Drug Abuse Counselors. The substance abuse professional must be licensed in Rhode Island.
An employee may be terminated if testing indicates continued use of controlled substances despite treatment.
Payment
The employer must pay for the test and give an employee the opportunity to explain the results.
Fine
An employer who does not follow the state’s drug testing law could be fined up to $1,000 and be sentenced to a year in jail.
Industries excluded from state law
Drivers regulated under Department of Transportation (DOT) requirements (CFR 40.1 et seq and 49 CFR part 382) are not covered by this state law if testing is performed under a policy mandated by the federal government.
Employees in the public utility or mass transportation industry may be required to take a drug test otherwise barred by this law if the test is mandated by federal regulations.
An employer in the highway maintenance industry may require tests otherwise barred by state law if the test is performed as regulated under 49 CFR part 40.
The law does not apply to members of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers voluntarily participating in the IMPACT National Substance Abuse Program. The penalty for a first-time positive test on designated drug-free work sites shall not exceed a 30-day suspension.
Court Case: Defining “reasonable grounds”
An employee’s jumbled description of an accident and unusual movements justified a drug test under Rhode Island law, the state Supreme Court ruled in Colpitts v. W.B. Mason Co., Inc. No. 2018-337-appeal (R.I. May 29, 2020).
State law allows employers to require employees to submit to a drug test if the employer has reasonable grounds to believe that an employee may be under the influence of a controlled substance which may be impairing the employee’s ability to perform the job.
In this case, a driver injured his arm and back while making a delivery, but after he returned to the company warehouse his supervisor observed some unusual behavior. His description of the injury was unclear. He also kept bending over or putting his hands on his knees.
The supervisor helped the employee fill out an injury report. He also contacted the company’s human resources representative who advised him to get the opinion of another person in the warehouse.
The supervisor brought in the branch manager who also talked to the employee and told him that the company wanted to do a drug test. At this point, the employee began swearing and speaking incoherently about the incident.
The employee testified that his actions were due to the fact that he was in a great deal of pain. At the testing site, he refused to be tested for drugs but tested negative for alcohol. A few days later the employee was fired for violating the company’s drug policy.
The employee sued the employer, saying that the fact that he was acting out of character did not justify a drug test. The Rhode Island Supreme Court disagreed, siding with a trial judge, and said the drug testing lawsuit could be dismissed.
The trial judge had found that the employer had reasonable grounds to believe that the employee’s performance, and the company’s documented observations concerning his appearance, behavior, and speech, indicated that he might have been under the influence of a controlled substance. She determined that a drug test was justified, noting that “just because there’s competing explanations doesn’t mean that their request was unreasonable.”
The Supreme Court agreed, noting that the statue does not require a supervisor or branch manager to be able to distinguish between symptoms of severe pain and being under the influence of drugs or alcohol. The circumstances indicated that there were reasonable grounds to request a drug test.
Workers’ compensation
Rhode Island’s workers’ compensation law denies benefits to an employee whose injury or death is the result of intoxication or use of controlled substances.
State
Contacts
Rhode Island Department of Labor and Training
Regulations
Drug testing law
Chapter 136. R.I. Gen. Laws Ch. 28, §28-6.5-1 & §28-6.5-2
http://webserver.rilin.state.ri.us/Statutes/TITLE28/28-6.5/INDEX.HTM
Workers’ compensation
R.I. Gen. Laws Ch. 28, §28-33-2
http://webserver.rilin.state.ri.us/Statutes/TITLE28/28-33/28-33-2.HTM
Federal
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.
Contacts
Drug testing rules
U.S. Department of Transportation
Regulations
DOT drug testing rules
49 CFR Part 40
49 CFR Part 382
Drug-Free Workplace Act of 1988
United States Code at 41 U.S.C. 81
Guidance document