Contractors frequently encounter contract provisions requiring that they test their employees on a particular project for the presence of drugs and alcohol. At times these provisions also purport to require disclosure to the other party of test results or other confidential information. By attempting to comply with these contract provisions, some contractors unintentionally expose themselves to claims by their prospective and current employees. 

Claims can be avoided by complying with the laws governing drug and alcohol testing.  First and foremost, draft and implement a legally compliant testing policy. Contractors cannot use a positive test result as a basis for disciplinary action against an employee without first preparing a written policy.  See Utah Code Ann. § 34-38-8(1) (2016).

The written policy must be distributed to current employees and made available to prospective employees. See id. at § 34-38-7(1). Management must also be tested on a periodic basis as part of the policy. See id. at § 34-38-3(1). Current employees can only be tested during or immediately after their regular work period, and testing must be treated as work time for purposes of compensation and benefits. See id. at § 34-38-5(1).  Specific requirements must be met for sample collection and testing. See id. at § 34-38-6. The contractor must pay all testing expenses, including transportation costs for off-site testing. See id. at § 34-38-5(2).

In addition, any information (including test results) received through a drug or alcohol testing program is confidential and should only be disclosed to authorized employees, the tested employee, or the tested prospective employee. See id. at § 34-38-11,-13. As a result, contractors should never agree to a contract provision purporting to require disclosure of test results or other confidential information to a third party as a means of verifying that the contractor’s employees are being tested.

An ounce of prevention is worth a pound of cure. Preparing a legally compliant drug and alcohol testing program is worth the investment.