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Arkansas Drug Test Update

The Arkansas Department of Labor issued new drug test rules for employers under the 2009 Drug Test Law. Effective May 1, 2010, the new rules generally prohibit an employer from charging an employee for a drug test. However, the rules permit an Arkansas employer to require the employee to pay for a drug or alcohol test, under very specific circumstances. Routine pre-employment drug screening must be free to the applicant, and the applicant must receive a copy of the results at no cost if requested in writing.

The same provisions apply to medical exams and drug tests before and during employment. An employee who requests that a sample be retested after a positive drug test can be required to pay for the retest – but not for the initial screening.

Certain exceptions apply to further drug tests if the employee has tested positive for an illegal drug (including alcohol) and has agreed to a plan as a condition of continued employment. In that case, the employee can agree in writing to pay for future drug tests.

However, the Arkansas regulations set a number of limits on such agreements between the employee and the employer.

Under the law, illegal drugs include controlled substances and any prescription medication unless the employee has a valid prescription for the drug at the time of the test.

Alcohol can be considered an illegal drug under the law if the employer has a written policy in place that:

Prohibits alcohol use in the workplace or before work

Establishes a test procedure for alcohol abuse

Defines a blood alcohol level considered a “positive” test

If an employee has a history of positive drug or alcohol tests, the employee can agree in writing to pay for future tests as a condition of employment. Such tests can be required by an employer who is required to make reasonable accommodation for a drug- or alcohol-dependent employee under ADA, the Americans with Disabilities Act. The Arkansas Department of Labor can demand a copy of such written agreement. Fees can be deducted from the employee’s paycheck or paid in another way.