Drug Testing in Arkansas

Voluntary Drug-Free Workplace Program

The Arkansas Department of Labor and Licensing states that employers establishing a drug-free workplace program that meets Rule 099.36 are eligible for a 5% credit on workers’ compensation insurance premiums.

Rule 36 is voluntary. It expressly states that it does not create a legal obligation for every Arkansas employer to establish a testing program, and it does not prevent otherwise lawful testing outside the minimum requirements of the voluntary program.

• Written drug-free workplace policy and employee notice.
• Employee education and supervisor training.
• Testing procedures and laboratory requirements.
• Medical Review Officer procedures for confirmed positive results.
• Confidentiality requirements.
• Employee-assistance and rehabilitation information.

Official source: Arkansas Department of Labor and Licensing — Voluntary Drug-Free Workplace Program

Testing Required for Rule 36 Employers

A participating Rule 36 employer must conduct specified categories of testing, subject to applicable law and the requirements of the rule.

• Post-offer drug testing of covered job applicants.
• Reasonable-suspicion drug or alcohol testing.
• Specified routine fitness-for-duty testing.
• Follow-up testing in specified rehabilitation or assistance-program situations.
• Post-accident testing after a qualifying workplace injury.

Rule 36 also allows employers to conduct additional lawful testing, including random testing, beyond the minimum testing required for the voluntary program.

Official source: Arkansas Workers’ Compensation Commission — Rule 099.36

Notice, Timing and Post-Accident Rules

Rule 36 requires at least 60 days between the general one-time employee notice that a drug-free workplace program is being implemented and the effective date of the program.

• Post-accident alcohol specimen collection is required within 8 hours of a qualifying accident.
• Post-accident drug specimen collection is required within 32 hours.
• Follow-up testing, when required by the rule, occurs at least annually for two years after successful program completion.
• Advance notice of a required follow-up testing date is not given to the employee.

Laboratory Confirmation and MRO Review

Rule 36 requires initial and confirmation procedures that follow the rule’s laboratory standards. Confirmation testing must be conducted by a qualifying laboratory, and a Rule 36 employer may not take specified adverse action solely on an unconfirmed positive test.

• Positive results are subject to confirmation and verification.
• Employees and applicants must have an opportunity to discuss prescription and nonprescription medication with the Medical Review Officer.
• A positive confirmed result may be contested or explained to the MRO within five working days after written notification.
• Drug and alcohol testing information under the program is subject to confidentiality protections.

Who Pays for Testing?

Arkansas also has a separate employment rule implementing Ark. Code Ann. § 11-3-203. In general, an employer may not require an employee or applicant, as a condition of employment or continued employment, to take a physical examination, medical examination, or drug test unless it is provided at no cost to that employee or applicant.

Under Rule 36 specifically, the employer pays the cost of all drug and alcohol tests that the Rule 36 employer requires of employees.

Official source: Arkansas Department of Labor and Licensing — Medical Examinations and Drug Tests Rule

Public Employees and Other Legal Limits

Rule 36 recognizes that testing must remain consistent with applicable federal and constitutional requirements. Public-employee testing can therefore involve additional constitutional limitations, and collective bargaining agreements or federal testing rules may also apply.

• Public employers should evaluate constitutional limits before testing.
• DOT-regulated employees remain subject to applicable federal testing rules.
• Collective bargaining requirements should be reviewed where applicable.
• Policies should be administered consistently and documented carefully.

Qualifying-Patient Status Is Protected

Arkansas law states that an employer shall not discriminate against an applicant or employee in hiring, termination, or another term or condition of employment based on that person’s past or present status as a qualifying patient or designated caregiver.

That protection does not prevent an employer from establishing and implementing a substance-abuse or drug-free workplace policy that includes a drug-testing program complying with state or federal law.

State-law source: Arkansas General Assembly — Act 593 of 2017 amending Amendment 98

A Positive THC Test Is Not Always Enough for Impairment

For a qualifying patient, Arkansas law allows an employer to act on a good-faith belief that the person possessed, used, or was under the influence of marijuana at work. However, the statute says that a positive marijuana test alone cannot be the sole basis for the employer’s good-faith belief that the person was under the influence at the workplace or during work hours.

The law separately allows employers to exclude a qualifying patient from a safety-sensitive position based on a good-faith belief that the patient is engaged in current marijuana use.

State-law source: Arkansas General Assembly — Act 593 of 2017

Safety-Sensitive Positions

Arkansas medical marijuana law defines safety-sensitive positions to include federally regulated safety-sensitive functions and positions designated in writing by an employer where marijuana impairment could threaten health or safety.

Examples in the law include work involving firearms, life-threatening procedures, hazardous or flammable materials, controlled substances, food or medicine, and duties where a lapse of attention could cause injury, illness, or death.

Choosing THC or No-THC Panels

• Arkansas employers should decide deliberately whether their non-DOT panel includes marijuana/THC.
• Medical marijuana patient status cannot be treated the same as workplace impairment.
• A positive THC result should be handled in light of the employer’s policy and Amendment 98 employment protections.
• Safety-sensitive positions receive different treatment under the medical marijuana law.
• DOT marijuana testing remains controlled by federal regulations.

DOT Rules Are Separate from Non-DOT Testing

A personal or employer non-DOT drug test should not be substituted for a test that is required under DOT regulations. DOT programs have specific requirements for test reasons, forms, collection procedures, laboratories, Medical Review Officers, refusals, records, and return-to-duty processes.

Federal source: U.S. Department of Transportation — 49 CFR Part 40

Examples of DOT-Regulated Industries

• Commercial motor carriers regulated by FMCSA.
• Aviation employers regulated by FAA.
• Railroad employers regulated by FRA.
• Public transit employers regulated by FTA.
• Pipeline operators regulated by PHMSA.
• Other covered transportation operations under federal rules.