last update 8-21-03

Louisiana's Employee Drug Testing Requirements

This page presents an overview of Louisiana's Revised Statute 49:1001 et seq relating to certain drug testing for employees.

First, let's look at what is not covered, such as:

--Treatment centers or physicians treating patients
--NCAA or NFL
--Athletes being tested by a reconized governing authority
--Those in the criminal prosecution process
--Those engaged in exploration and drilling of oil and gas in La
--Certain on-site screening where there are no consequences

Second, the law is limited to the testing for marijuana, opiods, cocaine, amphetamines and phencyclidine.

For an explanation of the law, I have taken an excerpt from the First Circuit case of Sanchez vs. Georgia Gulf, 2002 CA 1617, Aug 13, 2003 where the law was described as follows:

In 1990, the Louisiana legislature adopted drug-testing procedures set forth in LRS 49:1001 et seq that are designed to protect individual constitutional rights. see Phelps v La St Racing Commission 611 So2d 739 (La App 4th Cir 1992). Pursuant to this legislation, drug testing of La residents and of all samples collected in this state shall be performed in accordance with the Mandatory Guidelines for Federal Workplace Drug Testing programs, as issued by the National Institute on Drug Abuse Guidelines. The NIDA guidelines specify collection and testing procedures in order to assure accurate and unadulterated tests, set out specific requirements for reviewing and interpreting positive results and require that a medical review officer (MRO) review the drug tests prior to reporting the results to the employer. Price v City of Bossier City 96-2408, pp 2-3, (La 5/20/97), 693 So2d 1169,1171.

Specifically, the statutory framework contemplates that the sample be collected by a trained individual known as the "collection site person". The transfer of the sample to an appropriate laboratory is then regulated to ensure a proper chain of custody.

Pursuant to the statute, an initial or screening test is then performed on the sample. This test is an immunoassay screen used to eliminate "negative" urine specimens from further consideration. The initial or screning test may be performed either by a NIDA-certified laboratory or laboratory certified for forensic urine drug testing (FUDT) by the College of American Pathologists ("CAP-FUDT laboratory") or by a "screening laboratory," which is a facility that is state-certified, but not NIDA or CAP-FUDT certified.

The statue specifies that if the initial test is positive, a second test, called a confirmatory test SHALL be perforemd by a NIDA or CAP-FUDT certified laboratory. The confirmatory test uses a different technique and chemical principle from that of the initial test in order to ensure reliability and accuracy.

The drug-testing statute further provides that all confirmed positive drug test results shall be reported directly from the laboratory to a qualified "medical review officer". A "medical reiew officer" ("MRO") is statutorily defined as a "licensed physician responsible for receiving laboratory results generated by [an employer's] drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's positive test result together with his medical history and any other relevant biomedical information."

in reviewing the confirmed positive result, the employer's designated MRO SHALL contact the individual who submitted the specimen as outlined in the NIDA guidelines, before making a final decision to verify a positive result or report that result to the employer. With regard to the purpose of the requirement of review by an MRO, the NIDA guidelines provide as follows:

	An essential part of the drug testing program is the final 
	review of results.  A positive test result does not 
	automatically identify an employee/applicant as an illegal drug 
	user.  An individual with a detailed knowledge of possible 
	alternate medical explanations is essential to the review of 
	results.  This review shall be performed by the MRO prior to 
	the transmission of results to agency officials (or in this 
	case, the employer).

	The role of the MRO is to review and interpret positive test
	results obtained through the agency's testing program.  In 
	carrying out this responsibility, the MRO shall examine 
	alternate medical explanations for any positive test result.
	This action could include conducting a medial interview with 
	the donor, review of the donor's medical history, or review 
	of any other relevant biomedical factors.  The MRO shall review 
	all medical records made available by the donor when a confirmed
	positive test could have resulted from legally prescribed 
	medication.

	Excerpted from 59 Fed Reg 29908

Additionally, with regard to the requirement that the MRO contact the individual who submitted the specimen, the NIDA guidelines provide that prior to making a final decision to verify a positive test result, the MRO shall give the donor an opportunity to discuss the test result with him. Under the statutory framework of the drug-testing statutue and the NIDA guidelines, only after reviewing and verifying a positive test result shall the MRO report the result ot the employer.

The employee, confirmed positive, upon his written request, shall have the right of access within seven working days to records relating to his drug tests and any records relating to the results of any relevant certification, review, or suspension/revocation of certification proceedings. The employer may, but is not required to, afford an employee whose drug test is certified positive by the MRO the opportunity to undergo rehabilitation without termination of employment.

All information, inteviews, reports, etc received by the employer through its drug testing program are confidential communications and may not be used in evidence, obtained in discovery or disclosed in any public or private proceeding, except in a disciplinary proceeding or civil litigation where drug use by the tested individual is relevant.

No cause of action for defamation of character, libel, slander or damage to reputation or privacy arises in favor of any person against an employer or testing entity who has established a program of drug/alcohol testing in accordance with this law, unless:
--The results of the test were disclosed to any person other than the employer or testing entity, an authorized employee or the tested employee.
--The information disclosed was based on a false test result or a failure to comply with the provisions of this law.
--All elements of an action for defamation of character, libel, slander or damage to reputation or privacy as established by statute or civil law or duly satisfied.

DAMAGES

Statutes normally provide for damages for the breach of certain laws, such as the drug testing law. However, there is no provision in this law for damages by an employee that was improperly tested. Thus, any damages would have to flow from the fact that the tests were improperly conducted and the damages would be those damages that were directly due to that error, such as reinstatement to the job, payment of lost wages since the termination, damages to reputation (if proven), and any other damages that can be documented. There is no provision in the law for attorney's fees so they are not available.


========================  WARNING  =======================
                      AND DISCLAIMER
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed.  Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a 
attorney to discuss the specific facts of your case
and the law of your state.
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last update 8-21-03

Louisiana's Employee Drug Testing Requirements

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