Purposes of Oral Swab Testing:
Under Act 179 (Session Laws of Hawaii 2007), substance abuse on-site screening tests may be used for any type of drug testing permitted by law (i.e., pre-employment screening, random testing, reasonable suspicion, or post-accident testing).
Oral swab testing gives employers a low-cost, efficient option to initially screen applicants and employees for a variety of prohibited drugs.
Employers should be aware, however, that an indication of the presence of drugs, alcohol or the metabolites of drugs by the substance abuse on-site screening test cannot be used as a basis for any adverse employment action against an applicant or employee unless the applicant/employee also (a) fails or refuses to undergo a confirmatory test or (b) yields a positive result on a confirmatory test (as discussed in paragraph 4 below).
NOTE: Neither the United States Department of Transportation nor other federal agencies which require drug testing have authorized the use of oral swab testing for controlled substances, except as alcohol screening devices. Therefore, oral swab testing for controlled substances should be used only for non-DOT positions.
Conditions for Administering On-Site Screening Test:
- Certified Manufacturer: Authorized substance abuse on-site screening tests must either (a) meet the requirements of the United States Food and Drug Administration (“FDA”) for commercial distribution or (b) be manufactured in a facility satisfying ISO standard 13485. The FDA has not yet established requirements for oral swab substance abuse tests.
- Administration of Test: The substance abuse on-site screening test, including an oral swab testing kit, must be administered in accordance with the package insert accompanying the substance abuse on-site screening test.
- Costs of Testing: Unless the regulations of the United States Department of Transportation or another federal agency provide otherwise, an employer or other third party which imposes a drug testing requirement must bear the cost of substance abuse testing, including any screening or confirmatory testing.
- Travel to Testing Facility: An employee or job applicant who tests positive on an on-site screening test for the use of illegal drugs or alcohol should not be permitted to drive himself/herself to or from the licensed laboratory.
Prerequisites to Taking Adverse Action:
After a substance abuse on-site screening test yields a positive result for illegal drugs or alcohol, the employer shall have the employee or prospective employee report to a licensed laboratory within 4 hours for a confirmatory test.
Any applicant or employee who fails or refuses to report to a laboratory for a confirmatory test within 4 hours or who yields a positive result in a confirmatory test may be subject to adverse employment action, provided the employer has provided the individual with the required written notice.
Written Notice to Employees and Job Applicants: In order to deny employment or take adverse action against an employee or job applicant for refusing or failing to submit to a confirmatory test within the required 4-hour time period, the employer must provide written notice stating:
(a) the employer follows the procedures under H.R.S. §329B-5.5 governing on-site testing;
(b) employees and prospective employees may refuse to submit to a substance abuse test; and
(c) if the employee or prospective employee refuses or fails to submit to a substance abuse test requested by the employer, the employer may take adverse employment action against the employee or prospective employee.
The employee or prospective employee should also be notified that he/she must report to a designated licensed laboratory within 4 hours after being instructed to do so by the employer (e.g., “Failure to appear for urinalysis at a designated testing facility within 4 hours after being instructed to do so will be treated as a failure to submit to substance abuse testing”). Employers should also note also that under pre-existing Hawaii law at H.R.S. §329B-5(a), before any substance abuse or alcohol testing is conducted, the individual to be tested must receive a written statement describing the substances to be tested for, and a written statement that over-the-counter medications or prescription drugs can result in a positive test result.
Confidentiality Requirement:
Information concerning an on-site screening test shall not be disclosed without the written consent of the individual tested and shall not be subject to discovery or subpoena. However, the positive test request shall be disclosed to the person being tested, the laboratory to which the individual is referred for confirmatory testing, and to the decision-maker (i.e. administrative agency, judge, arbitrator, etc.) and named parties in a lawsuit, grievance, or other proceeding initiated by or on behalf of the person being tested and relating to the positive test result.