Arizona (Voluntary State)

TITLE 23. LABOR

CHAPTER 2. EMPLOYMENT PRACTICES AND WORKING CONDITIONS

ARTICLE 14. DRUG TESTING OF EMPLOYEES

23-493. Definitions

In this article, unless the context otherwise requires:

1. "Alcohol" means ethanol, isopropanol or methanol.

2. "Drugs" means any substance considered unlawful under the schedules of the controlled substances section of the comprehensive drug abuse prevention and control act of 1970 (P.L. 91-513; 84 Stat. 1247; 21 United States Code section 812) or the metabolite of the substance.

3. "Employee" means any person in the service of an employer.

4. "Employer" means any person, firm, company, corporation, labor organization, employment agency or joint labor-management committee, including any public utility, transit district or special taxing district organized pursuant to title 48, chapter 17 or 22, that has one or more full-time employees employed in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written. Employer does not include the United States , this state and its agencies other than the department of public safety, the state department of corrections and the department of juvenile corrections, any political subdivision of this state or any Native American tribe. The department of public safety, the state department of corrections and the department of juvenile corrections are employers for purposes of this paragraph.

5. "Good faith" means reasonable reliance on fact, or that which is held out to be factual, without the intent to deceive or be deceived and without reckless or malicious disregard for the truth.

6. "Prospective employee" means any person who has made application to any employer, whether written or oral, to become an employee.

7. "Sample" means urine, blood, breath, saliva, hair or other substances from the person being tested.

23-493.01. Collection of samples

A. In order to test reliably for the presence of drugs, an employer may require samples from its employees and prospective employees and may require presentation of reliable individual identification from the person being tested to the person collecting the samples. Collection of the sample shall conform to the requirements of this article. The employer may designate the type of sample to be used for this testing.

B. In order to test reliably for alcohol impairment, an employer may require samples from its employees and identification from the person being tested to the person collecting the samples. Collection of the sample shall conform to the requirements of this article. The employer may designate the type of sample to be used for this testing.

23-493.02. Scheduling of tests

Regarding the timing and cost of drug tests and alcohol impairment tests, and in order for an employer to qualify for the benefits of this article:

1. Any drug testing or alcohol impairment testing by an employer of employees normally shall occur during, or immediately before or after, a regular work period. The testing by an employer shall be deemed work time for the purposes of compensation and benefits for current employees.

2. An employer shall pay all actual costs for drug testing and alcohol impairment testing required of employees by the employer. An employer may, at its discretion, pay the costs for drug testing of prospective employees.

3. An employer shall pay reasonable transportation costs to current employees if their required tests are conducted at a location other than the employee's normal work site.

23-493.03. Testing procedures

All sample collection and testing for drugs and alcohol impairment under this article shall be performed according to the following conditions:

1. The collection of samples shall be performed under reasonable and sanitary conditions.

2. Sample collections shall be documented and these documentation procedures shall include both of the following:

(a) Labeling of samples in order to reasonably preclude the possibility of misidentification of the person tested in relation to the test result provided.

(b) An opportunity for the person to be tested to provide notification of any information that may be considered relevant to the test, including identification of currently or recently used prescription or nonprescription drugs or other relevant medical information.

3. Sample collection, storage and transportation to the place of testing shall be performed in a manner reasonably designed to preclude the possibility of sample contamination, adulteration or misidentification.

4. Sample testing shall comply with scientifically accepted analytical methods and procedures. Drug testing shall be conducted at a laboratory approved or certified by the United States department of health and human services, the college of American pathologists or the department of health services.

5. Drug testing shall include confirmation of any positive drug test results for employees. Confirmation of positive drug test results for employees shall be by use of a different chemical process than was used in the initial drug screen. The second or confirmatory drug test shall be a chromatographic technique such as gas chromatography-mass spectrometry or another comparably reliable analytical method.

23-493.04. Testing policy requirements

A. Testing or retesting for the presence of drugs or alcohol by an employer shall be carried out within the terms of a written policy that has been distributed to every employee subject to testing or that has been made available to employees in the same manner as the employer informs its employees of other personnel practices, including inclusion in a personnel handbook or manual or posting in a place accessible to employees. The employer shall inform prospective employees that they must undergo drug testing. The written policy shall include at least the following:

1. A statement of the employer's policy respecting drug and alcohol use by employees.

2. A description of those employees or prospective employees who are subject to testing.

3. The circumstances under which testing may be required.

4. The substances as to which testing may be required.

5. A description of the testing methods and collection procedures to be used.

6. The consequences of a refusal to participate in the testing.

7. Any adverse personnel action that may be taken based on the testing procedure or results.

8. The right of an employee, on request, to obtain the written test results.

9. The right of an employee, on request, to explain in a confidential setting, a positive test result.

10. A statement of the employer's policy regarding the confidentiality of the test results.

B. Within the terms of the written policy, an employer may require the collection and testing of samples for any job-related purposes consistent with business necessity including:

1. Investigation of possible individual employee impairment.

2. Investigation of accidents in the workplace. Employees may be required to undergo drug testing or alcohol impairment testing for accidents if the test is taken as soon as practicable after an accident and the test is administered to employees who the employer reasonably believes may have contributed to the accident.

3. Maintenance of safety for employees, customers, clients or the public at large.

4. Maintenance of productivity, quality of products or services or security of property or information.

5. Reasonable suspicion that an employee may be affected by the use of drugs or alcohol and that the use may adversely affect the job performance or the work environment.

C. In addition to the provisions of subsection B, employees or groups of employees may be required to undergo drug testing on a random or chance basis.

D. If an employer institutes a policy of drug testing or alcohol impairment testing under this article, all compensated employees including officers, directors and supervisors shall be uniformly included in the testing policy.

E. Nothing in this article shall be construed to encourage, discourage, restrict, limit, prohibit or require on-site drug testing or alcohol impairment testing.

23-493.05. Disciplinary procedures

An employer may take adverse employment action based on a positive drug test or alcohol impairment test. On receipt of a positive drug test or alcohol impairment test result that indicates a violation of the employer's written policy, on the refusal of an employee or prospective employee to provide a drug testing sample or on the refusal of an employee to provide an alcohol impairment testing sample, an employer may use that test result or test refusal as a basis for disciplinary or rehabilitative actions that may include any of the following:

1. A requirement that the employee enroll in an employer provided or employer approved rehabilitation, treatment or counseling program, which may include additional drug testing and alcohol impairment testing, participation in which may be a condition of continued employment and the costs of which may or may not be covered by the employer's health plan or policies.

2. Suspension of the employee, with or without pay, for a designated period of time.

3. Termination of employment.

4. In the case of drug testing, refusal to hire a prospective employee.

5. Other adverse employment action.

23-493.06. Employer protection from litigation

No cause of action is or may be established for any person against an employer who has established a policy and initiated a testing program in accordance with this article for any of the following:

1. Actions in good faith based on the results of a positive drug test or alcohol impairment test.

2. Failure to test for drugs or alcohol impairment or failure to test for a specific drug or any other controlled substance.

3. Failure to test or, if tested, failure to detect any specific drug or other substance, any medical condition or any mental, emotional or psychological disorder or condition.

4. Termination or suspension of any substance abuse prevention or testing program or policy.

23-493.07. Causes of action based on test results

A. No cause of action is or may be established for any person against an employer who has established a program of drug testing or alcohol impairment testing in accordance with this article, unless the employer's action was based on a false positive test result and the employer knew or clearly should have known that the result was in error and ignored the true test result because of reckless or malicious disregard for the truth or the wilful intent to deceive or be deceived.

B. In any claim, including a claim under this article, if it is alleged that an employer's action was based on a false positive test result:

1. There is a rebuttable presumption that the test result was valid if the employer complied with the provisions of this article.

2. The employer is not liable for monetary damages if its reliance on a false positive test result was reasonable and in good faith.

C. There is no employer liability for any action taken related to a false negative drug test or alcohol impairment test.

23-493.08. Limits to causes of action

A. No cause of action for defamation of character, libel, slander or damage to reputation is or may be established for any person against an employer who has established a program of drug testing or alcohol impairment testing in accordance with this article unless all of the following apply:

1. The results of that test were disclosed to a person other than the employer, an authorized employee, agent or representative of the employer, the tested employee, the tested prospective employee or any other person authorized or privileged by law to receive the information.

2. The information disclosed was a false positive test result.

3. The false positive test result was disclosed negligently.

4. All elements of an action for defamation of character, libel, slander or damage to reputation as established by law are satisfied.

B. No cause of action arises in favor of any person against an employer based on the failure of the employer to establish a program or policy on substance abuse prevention or to implement drug testing or alcohol impairment testing.

C. Compliance with this article by employers is voluntary and no cause of action arises as a result of having a drug testing and alcohol impairment testing policy that is not in compliance with this article.

23-493.09. Confidentiality of results; access to records

A. All communications received by an employer relevant to drug test or alcohol impairment test results and received through the employer's testing program are confidential communications and may not be used or received in evidence, obtained in discovery or disclosed in any public or private proceeding, except in a proceeding related to an action taken by an employer or employee under this article or except disclosure to:

1. The tested employee or prospective employee or any other person designated in writing by that employee or prospective employee.

2. Individuals designated by the employer to receive and evaluate test results or hear the explanation of the employee or prospective employee.

3. An arbitrator or mediator, or a court or governmental agency as authorized by state or federal law.

B. The tested employee has a right of access to the written test results that pertain to that individual, subject to the maintenance of confidentiality for other individuals.

C. Except as otherwise permitted by law, no sample taken for testing pursuant to this article shall be tested for any substance or condition except unlawful drugs or alcohol as defined in this article.

23-493.10. Construction; collective bargaining

Nothing in this article shall be construed to infringe on, contradict, preempt or otherwise conflict with the valid provisions of any collective bargaining agreement or to otherwise abridge or infringe on the rights and responsibilities of all parties in the collective bargaining process to negotiate collective bargaining agreements. These contract provisions are fully valid and enforceable, notwithstanding the provisions of this article. An employer who follows the provisions of a drug testing or alcohol impairment testing policy negotiated or bargained to impasse with the collective bargaining representative of its employees or consistent with the terms of a collective bargaining agreement, shall receive the full benefits of this article, even if that policy does not conform to all of the provisions of this article.

23-493.11. Effect of mandatory testing obligations

An employer who is obligated by state or federal requirements to have a drug testing or alcohol impairment testing policy or program shall receive the full benefits of this article, even if that policy or program does not conform to all of the provisions of this article, provided the employer complies with the state or federal requirements applicable to the employer's operations.