There are many state laws that affect workplace drug testing. Laws differ in each state, particularly those states that have legalized medical marijuana, and in some cases recreational marijuana.
Most states have some sort of laws in place for both pre-employment drug testing, as well as workplace drug testing policy guidelines. It can be a challenge for employers to stay up-to-date with the latest state laws as they relate to drug and alcohol testing. At National Drug Screening, we have created an easy-to-use summary guide for drug testing in the workplace. Click on a state below to find a summary of the workplace drug and alcohol testing regulations for that state.
Regulations for Workplace Drug Testing
Regulations for workplace drug testing are very important to maintain an effective and legal drug free workplace program. These regulations typically fall into several categories:
These are the drug and alcohol testing regulations for employers regulated by the United States Department of Transportation (DOT). These regulated employers must follow these regulations as they are mandatory. The DOT regulations for drug and alcohol testing also supersede any other State or Local regulations for drug testing or alcohol testing being conducted by these DOT regulated employers. Learn more about DOT Compliance related to DOT drug and alcohol testing programs.
Drug Free Workplace Act of 1988
Employers and grant recipients working with the Federal Government may be required to implement a drug-free workplace program due to the contract they have with the Federal Government. The Drug-Free Workplace Act of 1988 requires some federal contractors and all federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or grant from a federal agency. Have questions about the Drug-Free Workplace Act of 1988? Contact the professionals at National Drug Screening for more information.
For Non-DOT testing, there are no major regulatory requirements other than paying attention to any State laws. The use of a qualified collection facility, a SAMHSA certified lab and a Medical Review Officer (MRO) is always a best practice. Some areas that State laws might address are:
Marijuana considerations will be a required in all States when implementing or updating a drug free workplace policy. Review carefully our web pages on marijuana in the workplace.
Click on a state below to find more information about the State or States you are operating in. Always seek professional assistance when implementing your drug free workplace program. Policy development is available from National Drug Screening.
Many States have implemented medical marijuana and/or recreational marijuana laws. Some States are silent on the issue. DOT regulations strictly prohibit marijuana and any positive for THC is a violation. Use of CBD is always recommended to be at your own risk as many CBD products contain more THC than advertised. Drug testing cannot identify whether the THC on a positive drug test is from marijuana or from CBD products.
Employers need to make decisions about marijuana and must publish these decisions in their drug-free workplace policies. Our web site provides a comprehensive section on marijuana in the workplace. We encourage employers to view our marijuana pages to help with decision making on medical marijuana and recreational marijuana. Our consultants are also available to assist employers on these issues. Click here to review the marijuana laws for each state.
Employers Have So Many Questions … Determining Answers Is Complex! Check out our page on WORKPLACE CONSIDERATIONS FOR MARIJUANA USE.
Mandatory Requirements vs Voluntary Requirements
State laws on drug testing are typically broken down by States with mandatory requirements, States with no specific requirement or open states and States with voluntary requirements. Court decisions or case law can also impact what you can or cannot due in a drug testing program in a specific state. To make it even more confusing, some states have open, mandatory and voluntary scenarios. In addition, many States have public works laws requiring employers working on State funded public projects to maintain a drug free workplace similar to the Drug Free Workplace Act of 1988 but on a State level.
The States with mandatory requirements have statutes that spell out what can be done and what cannot be done with workplace drug and alcohol testing programs. Examples of mandatory States include Connecticut, Hawaii, Iowa, Louisiana, Maine, Maryland, Montana, Nebraska, North Carolina, Oklahoma, Oregon, and Vermont. In many cases, the State mandatory requirements would mirror Federal or SAMHSA drug testing rules and guidelines.
Open States generally have no statutory rules or guidelines for drug or alcohol testing. These states are not restricting drug testing and will have no specific requirements for drug testing. Examples of open States include New Hampshire, Nebraska, Wisconsin, Washington, Texas, South Dakota, Pennsylvania, North Carolina, Michigan, and Massachusetts.
Voluntary States are typically States that have voluntary laws that offer a workers’ compensation premium discount to companies that elect to participate and follow the State program for drug free workplace. Although participation is voluntary, once the employer elects to participate in the States drug free workplace program there are now requirements. Georgia and Ohio have the most aggressive voluntary law with workers’ compensation premium discounts up to 7% for Ohio and 7.5 % for Georgia. Other States with voluntary drug free workplace laws include Alabama, Alaska, Arizona, Arkansas, Florida, Idaho, Kentucky, Mississippi, South Carolina, Tennessee, Utah, Virginia, and Wyoming.
Regarding the Occupational Safety and Health Administration (OSHA) rule on post-accident drug and alcohol testing, there is nothing to prohibit drug testing of employees, including drug testing pursuant to the Department of Transportation rules or any other federal or state law. It only prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
Employers should continue to post-incident drug testing pursuant to a state or federal law, including DOT testing and Workers’ Compensation Drug Free Workplace policies, because OSHA section 1904.35(b)(1)(iv) does not apply to drug testing under state workers’ compensation law or other state or federal law.
National Drug Screening is an industry leader in drug and alcohol testing, MRO services, DOT testing services and compliance, as well as consulting and policy development for drug testing in the workplace. Whatever your drug testing needs are, we can help. Contact us today at 866-843-4545 to learn more.