Business Information Group previously provided information discussing notification requirements during pre-employment drug screening. This update includes additional jurisdictions where similar notification laws now exist such as: Arkansas, Idaho, Mississippi, and Vermont. This update also provides additional details on jurisdictions that now implement penalties for non-compliance such as Maine and Oklahoma. A comprehensive list with all updates on notification requirements and non-compliance penalties may be accessed here:

• State-Specific Guidance Regarding Drug and/or Alcohol Test Results Follow Up
• State Drug Testing Letter Notification Requirements - Penalties for Non-Compliance

State Requirements

Arkansas: An employer is required to furnish a copy of a drug test report to an employee or applicant upon written request.¹

Idaho: Any employee or prospective employee who tests positive for drugs or alcohol must be given written notice of that test result, including the type of substance involved, by the employer.² As previously mentioned, there are several penalties holding employers accountable such as: reinstatement or hiring, with or without back pay, or any other equitable relief as the court deems appropriate including attorney fees and court costs.³

Mississippi: An employer is required to inform an employee of a positive drug test result within 5 working days of receiving the results. An employer must provide the results in writing and inform the employee of consequences and options available, such as the employee's ability to contest the accuracy of the result.⁴ An employee has 10 working days after receiving notice of a positive confirmed test result to submit information explaining the test results. Mississippi also implements several penalties for employers. A court may award damages and/or attorney fees. An employer may also be required to provide for: (a) reinstatement of the person to the same position held before the unlawful drug testing, disciplinary action or discharge, or to an equivalent position; (b) the reinstatement of full employee benefits and seniority rights; (c) compensation for lost wages, benefits and other remuneration to which the person would have been entitled but for a violation of this chapter; and (d) payment by the employer of reasonable costs.⁵

Vermont: Under Vermont law, a Medical Review Officer (MRO) is required to personally contact an employee or applicant who has a positive test result, explaining the result and potential inaccuracy of the test.⁶ Applicants and employees who test positive must receive an opportunity to retest a portion of the sample at an independent laboratory; the MRO must consider the subsequent results obtained.⁷ As previously mentioned, Vermont provides for both civil and criminal penalties for employers who violate the provisions specified.

Finally, a few jurisdictions have added penalties for non-compliance with their respective drug testing notification regulations. These jurisdictions include Maine and Oklahoma.

Maine: Employers were previously required to notify employees and applicants of both positive and negative test results. The state now imposes penalties for non-compliance which apply to any employer who violates notification requirements. Penalties include: (1) an amount equal to 3 times any lost wages; (2) reinstatement of the employee to the employee's job with full benefits; (3) court costs; and (4) reasonable attorney's fees, as set by the court.⁸

Oklahoma: The state of Oklahoma only requires employers to provide positive test results to applicants and employees when requested. As an update to previously published information, Oklahoma implemented penalties for non-compliance which include wages the person would have been entitled to and an additional equal amount as liquidated damages. Reasonable costs and attorney fees may also be awarded to the prevailing party.⁹

Posted: January 20, 2021

¹ Ark. Code Ann, Sec. 11-3-203(a)(1).

² Idaho Code Ann, Sec. 72-1706(1).

³ I.C.A. §730.5

⁴ Miss. Code Ann, Sec. 71-7-9(10).

⁵ Miss. Code Ann., Sec. 71-7-23; Sec. 71-7-25.

⁶ VT Stat. Ann. tit. 21, Sec. 515(a).

⁷ VT Stat. Ann. tit. 21, Sec. 515(b).

⁸ ME Rev. Stat. Ann., tit. 26, Sec. 689.

⁹ Okla. Stat tit. 40, Sec. 563, amended by H.B. 2033, L. 2011.