Drug Testing Guidelines,
Frequently Asked Questions

 

Q.
Who keeps/receives the results of a drug test?
A.

The employer keeps/receives the results not NHADA. The results must be kept in the employees medical file. Which must be separate from the employees personnel file and retained in a locked filing cabinet.

Q.
What happens if an applicant tests positive?
A.
Before the employer is notified of a positive test result, a predetermined Medical Review Officer (MRO) reviews the test results. They then contact the applicant to find out why there was a positive test result; Did they eat a poppy seed muffin? Are they taking prescription medication? etc... The MRO determines if the reason is valid or not. If it is a valid reason they may ask the applicant to retake the test. If they determine it is a valid positive, the employer is then contacted. This process usually takes 24 to 48 hours. If the individual is not hired, all records obtained through the hiring process (application, test results, etc…) must be kept on file for up to one year. This goes for every application received.
 
Q.
Can the applicant retake the test if they fail the first time?
A.
It is recommended they don’t get a second chance. The MRO is involved to ensure that the reasons given for a positive test result are valid.
 
Q.
When can an applicant reapply for a position if they have already failed a drug test?
A.
It depends on what the employer has determined as a reasonable time frame. This should be identified in your policy.
 
Q.
Why isn’t Attachment J (Universal Underwriters MVR request form) customizable?
A.
Attachment J was put into the binder as an example and can only be used if they are your “Property/Casualty” carrier. If not, Attachment I (Authorization for Release of Records) would better suit you in complying with the Fair Credit Reporting Act (FCRA).
 
Q.
If a prospective employee is injured when going to or coming from a drug test will it be covered by Workers’ Compensation?
A.
The conditional offer of employment has been made, but the contract of hire has not been finalized, therefore the person is not an employee, and therefore not covered.
 
Q.
What if the employer puts the employee to work before the drug test, the conditions for continued employment are based on passing the test, and the employee is injured going to or coming back from the test will they be covered by WC?
A.
This is a problem. The person is now an employee since they are getting paid, although the employer will not pay them for the time lost to attend the appointment. The drug test is of mutual benefit to the employee and employer and therefore the Department of Labor would most likely consider the injury compensable.
 
Q.
Do you need parental/guardian consent for a drug test when hiring a minor?
A.
Yes you do! If hiring a minor the parent/guardian must consent to the test but results cannot be shared with the parents. It is also recommended to check with the collection facility to see if they have a separate consent form for the parent/guardian to sign. If not, and they request your consent form, make sure a copy is made for your records as would be best practice in all cases.
 
Q.
What happens if a youth applicant tests positive? Do the results go to the parent/guardian?
A.
If a youth tests positive the results go to the youth not the parent/guardian. It is up to the youth to disclose the results to the parent/guardian.
 
Q.
What happens if a result comes back as a dilute?
A.
It is up to the employer to decide how to handle a non-regulated pre-placement dilute. DOT requires a repeat test with a negative result. It’s recommended that the employer repeat the test ASAP at their expense and only hire negative, non-dilute, applicants.
 
Q.
Do I need to test seasonal employees that are being rehired?
A.
Yes! They are considered a new hire. Consistency is the key to a successful program. Treat all new hires the same including rehires, part-time employees, etc.
 
Q.
Are you required to drug test subcontractors before they start?
A.

You do not have to drug test subcontractors before they start, but you must be certain the individual is considered a subcontractor. In New Hampshire a subcontractor has to meet all of the following criteria:

(A)
The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter.
(B)
The person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer.
(C)
The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.
(D)
The person hires and pays the person's assistants, if any, and to the extent such assistants are employees, supervises the details of the assistants' work.
(E)
The person holds himself or herself out to be in business for himself or herself.
(F)
The person has continuing or recurring business liabilities or obligations.
(G)
The success or failure of the person's business depends on the relationship of business receipts to expenditures.
(H)
The person receives compensation for work or services performed and remuneration is not determined unilaterally by the hiring party.
(I)
The person is responsible in the first instance for the main expenses related to the service or work performed. However, this shall not prohibit the employer or person offering work from providing the supplies or materials necessary to perform the work.
(J)
The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.
(K)
The person supplies the principal tools and instrumentalities used in the work, except that the employer may furnish tools or instrumentalities that are unique to the employer's special requirements or are located on the employer's premises.
(L)
The person is not required to work exclusively for the employer.
If the individual does not meet all of the above criteria they are considered an employee not a subcontractor.

Updated June 11, 2011