Mark asks, "If your employer doesn't already drug test, can they start immediately and just start testing anyone at random, or is there a process they must go through, like a notice to employees the policy is going to change and random testing will begin in xx amount of days?"
Luckily, there's already a clear answer here, and it was set long before cannabis legalization took effect in Alaska: No. State law says that an employer without a drug testing policy can't just start immediately drug testing people, random or not, without facing potential litigation and damages. And to be immune from those potential consequences, an employer's testing program must follow certain protocols that state law outlines.
To be clear, though, here we're talking about employer-specific testing programs, and not testing that may be a part of licenses or certifications necessary for the job. We're also not talking about employers subject to federal drug testing requirements, which are different from the state's.
Read more Highly Informed: Seeking answers to Alaska's cannabis questions
The protocols called for by the state mean the answer to that second part is yes; there is a process for employers to follow when making changes to or beginning a drug policy or testing program. The laws specify a host of minimum requirements. For people who want to learn more, the guidelines can be found in Alaska Statutes 23.10.620.
In answer to a related side question on this topic from Philip, those statutes require that the employer pay for a testing program, as well as for reasonable transportation costs if the testing site is different from the normal worksite.
Among other details like that, those statutes also call for 30 days' written notice before any changes in drug testing policy take effect. So it can't just be an email sent to staff saying something like, "Yeah, we've got a new drug testing policy. If you could all report to the break room and give samples before your shift ends, that'd be great."
And notice must come with certain details. For instance, which groups of employees or positions will be subject to testing, providing written copies of the policy, and identifying the consequences for a positive test or refusal to submit a sample.
"The whole point is that employers shouldn't be changing terms and conditions of employment without giving notice," said Richard Birdsall, a senior management consultant with The Growth Company, an Anchorage management and human resources consulting firm.
The laws don't force an employer to comply with those standards, he said, but there's a so-called "safe harbor" provision of state law (AS 23.10.600) that gives plenty of incentives to do so, in the form of protections from litigation by employees who may feel unfairly treated. In a scenario like the one Matt describes, it's easy to imagine employees who'd feel mistreated even if they don't use cannabis. Employers are immune from liability if they comply with the safe harbor provision and follow certain testing protocols, Birdsall said.
The Alaska Supreme Court has also decided that when it comes to the employer-employee contract, there's an implicit promise of "good faith and fair dealing," which can be breached in cases where there's a broader concern for employee health and safety. But when it comes to legal cannabis, the law and precedent on drug testing probably isn't finished evolving.
But precedent does exist. Late last century, two Alaska employees found themselves in a situation that ran headlong into all this employment law. Two North Slope workers found themselves subject to a surprise drug test policy change. They were both fired, one for refusing the test, the other for a cannabis-positive result from a test he took during his time off. The cases went to the Supreme Court, and the 1989 decision upheld their firing but set employment law precedent.
The relevant standard at question here was put clearly by the court in that decision: "By requiring a test, an employer introduces an additional term of employment. An employee should have notice of the additional term so that he may contest it, refuse to accept it and quit, seek to negotiate its conditions, or prepare for the test so that he will not fail it and thereby suffer sanctions."
In the context of Mark's question, said Birdsall, "basically what (the decision) stands for is that you don't do sudden policy changes that ambush employees."
In February last year, as part of a deep report by Alaska Dispatch News about how legalization may affect drug testing policy, Birdsall advised that testing programs need to focus on the "nexus between the use and work." And nothing has changed since then, he said recently.
In that decision, the court said, "the employer's interest is not in the broader police function of discovering and controlling the use of illicit drugs in general society." Basically drug policies should have something to do with ensuring the quality of work or the safety of employees, not simply dictating what employees do during their off time.
Birdsall also noted in February that in these latter days, both employers and employees should make sure they're on the same page when it comes to policy rather than make any assumptions about what's expected. For more details about how drug testing works and what concerns are at play now that cannabis is unequivocally legal in Alaska, the February report treating the testing question in full is available online in the Cannabis North section of ADN.com.
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Alaska Dispatch Publishing