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Summary of differences between federal and state regulations
Texas Drug Test Falsification law
Texas Drug Test Falsification law provides that it is illegal to manufacture, deliver, own, or use a substance or device designed to falsify drug test results.
Workers’ compensation
An insurance carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication.
Protection of Laborers
An employer may adopt a policy prohibiting employment of an individual who currently uses or possesses a controlled substance, other than the use or possession of a drug taken under supervision of a licensed health care professional or authorized by federal or state law.
Unemployment insurance
Specific information is needed if an employer wishes to challenge an employee’s unemployment insurance claim after an employee is terminated because of a positive drug test.
Under a Texas Workforce Commission precedent case, Appeal No. 97-003744-10-040997, employers need to present the following information to establish that a claimant’s positive drug test result constitutes misconduct:
1. A policy prohibiting a positive drug test result, receipt of which has been acknowledged by the claimant;
2. Evidence to establish that the claimant has consented to drug testing under the policy;
3. Documentation to establish that the chain of custody of the claimant’s sample was maintained;
4. Documentation from a drug testing laboratory to establish than an initial test was confirmed by the gas chromatography/mass spectrometry method; and
5. Documentation of the test expressed in terms of a positive result above a stated test threshold.
State
Contacts
Texas Workers’ Compensation Commission
Regulations
Texas Drug Test Falsification law
Texas Health and Safety Code, Title 6, Chapter 481 Texas Controlled Substances Act, Subchapter D, Section §481.133
Workers’ compensation
Texas Labor code, Title 5, Subtitle A, Section 406.302 (1)(A)
Protection of Laborers
Texas Labor Code Title 2, Subtitle A, Chapter 21, Section 21.120
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