The issue in this case was not whether the employee was lawfully taking Phenobarbital. In fact, it appears that the Court accepted the fact that the employee was taking Phenobarbital without a valid prescription. Rather the issue the Court focused upon was whether an employer is permitted to test for Phenobarbital at all under the Oklahoma Testing Act.

 The Oklahoma Testing Act grants the Oklahoma State Department of Health authority to implement regulations for workplace drug testing standards and procedures. More than fifteen years ago, the Department issued an extensive set of intricate requirements related to all facets of workplace drug testing, including which drugs are approved for testing. Okla. Admin. Code 310:638. The Court in this matter took the view, based upon the Department of Health’s regulations, that an employer may only test for Schedule I, II, and III drugs. The Court held that since Phenobarbital is a Schedule IV drug, the employer was prohibited from testing for this drug and further found that the employer willfully violated the Oklahoma Testing Act by doing so. The employer’s defense that it did not know Phenobarbital was prohibited from being tested and that it relied on the laboratory to properly test employee specimens was not persuasive to the Court.

 This holding is overly simplistic and apparently incorrect view of the regulation at issue, given that several Schedule IV drug are specifically listed in the Department’s regulations. More importantly, however, the decision allows other employees terminated for accurate positive drug tests to sue their employers and recover significant sums of money despite the fact that the employee was unlawfully taking a controlled substance. Fortunately, however, it appears that the Oklahoma legislature is taking steps to address this interpretation of Oklahoma’s drug testing law.

 In February 2011, House Bill No. 2033 was introduced in the Oklahoma legislature. This bill amends the Oklahoma Testing Act in various ways, but most significantly, strips the Department of Health’s authority to implement regulations related to drug testing standards and procedures, which includes the types of drugs for which employers may test their employees. This bill has been passed by both the House and the Senate and is expected be signed into law and become effective on November 1, 2011.  Oklahoma employers and their service agents should then be able to once again test Oklahoma employees without fear of paying for a valid termination of an employee unlafuwfully taking controlled substances. 

If you have any questions regarding the effect of the Oklahoma Testing Act on your workplace or if you have any inquiries regarding other state drug testing laws and reqruiements, please visit the Firm’s website at caldwelleverson.com.