State Drug Testing Laws.

Except for certain employers in industries that are heavily regulated by the federal government (such as transportation, nuclear energy, and military contracting), federal law doesn’t have much to say about drug testing.  Many states  and  some local governments regulate drug testing.   The rules depend on whether the employer wants to test an applicant or an employee.

A number of states and municipalities have laws that regulate work-related testing for substance abuse.  Those that do also specify the scientific procedures to which testing labs must adhere. And many of these laws provide ways of dealing with over broad or abusive workplace drug testing that are simpler, quicker, and less expensive than filing a lawsuit. Some states also require companies to distribute written policies on drug testing and rehabilitation.

Ironically, workers in states that have laws regulating the timing and procedures of drug and alcohol testing may actually have more protections than those living in states with no testing laws. Employees living in such lawless states, for example, may generally be tested without advance notice.

The Differences In Drug Testing Regulations.

Many people are unaware of the differences in drug testing regulations between the states in the United States. It is assumed that these regulations are generally regulated by federal sources and that there are few differences in the way this process is handled; however, there are many ways that these policies are unique. In order to understand them better, you’ll need to know about the different types of drug testing.

  • Voluntary: There are 17 states that are classified as voluntary. In these states, there are special incentives (generally this means denial of workers compensation in the event of positive drug tests result or annual workers comp premiums) offered to employers who establish drug testing programs. In order to get these incentives, the company needs to adhere to the regulations set out by that state.
  • Mandatory: There are 19 mandatory states. Mandatory in this case means that a company which has a drug testing program must adhere to regulations set out by the state. Generally, this means that there are rules laid out about how the testing will be done and in many of these states, rules are laid out on how to run many aspects of the drug testing program as well.
  • Required: In states that are classified as required, there are specific job types that are required to adhere to the drug testing programs laid out by the state, these companies absolutely must conduct alcohol testing regularly. Jobs that are generally affected by this include home health care workers, public works contractors, state contractors and those who are made responsible for the care of children.
  • Open: There are very few states that fall into this category today. In these states, there are no specific regulations on the way that drug testing is run or on what it can or cannot do in the process of drug testing or in reaction to a positive result. Essentially drug testing is regulated by whoever chooses to design a program and is run in the way that company sees fit.
  • Hybrid: In a hybrid state, there are regulations that are a combination of more than one type of drug testing regulation. This means that one grouping of industry leaders will be required to conduct drug testing no matter what their preference is while other less state involved industries are allowed to choose whether or not they drug test and offered incentives to do so.

These types have their similarities but the differences are very important when you are designing a drug testing policy as these regulations have a major influence on the way you’ll need to conduct drug testing. This is especially true when your company may be facing a lawsuit from an employee who was let go due to a positive test result or another employee who felt that their rights were violated by your policy. If you make a point of following the regulations of your state, there are likely to be far fewer problems in the long run which is best for you, your employees and your state.

State Laws On Drug Testing.

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Testing Applicants

State laws typically allow employers to test applicants for drugs.   The employer must follow the state’s rules about providing notice and following procedures intended to prevent discrimination and inaccurate samples.

For example, a number of states allow applicant testing only if: 

  • The applicant knows that such testing will be part of the screening process for new employees (for example, because the job application said so or because the employer’s online job posting stated that a drug test would be required).
  • The employer has already offered the applicant the job, contingent on passing a drug test.
  • All applicants for the same job are tested similarly.
  • The tests are administered by a state-certified laboratory.

Most companies that intend to conduct drug testing on job candidates.  They often include in their job applications an agreement to submit to such testing.  If you are asked to agree to drug testing you have little choice but to agree to the test or drop out as an applicant.

Testing Current Employees

There are some legal constraints on testing employees for drug usage in most private employment jobs. In some states, companies cannot conduct blanket drug tests of all employees or random drug tests; the testing must be focused on an individual, either because the employer has a good reason to believe that person is using drugs or because the person’s job carries a high risk of injury or damage if performed by someone who is under the influence.

Courts have generally ruled that companies may test employees after an accident that could have been caused by drug use or an incident in which the employee appeared to be impaired. For example, a bulldozer operator who swerved the machine illogically through a field crowded with workers could be the legal target of drug testing. And a legal secretary found slumped at her desk, unable to respond cogently to questions asked of her, was also considered fair game for a drug test.

Challenging Drug Tests

You Can Always Refuse To Take Your Workplace Drug Test.   However, if you are fired you may have little recourse and in some states you might be denied unemployment benefits if you are fired for refusing to take a drug test.  Your employer needs only to show that there was good reason to believe that you were a safety hazard on the job or that you seemed unable to perform the work required.  You would be placed in the difficult position of proving that your employer knew no such thing.  You may be able to win your job back if you can show that you were treated differently from other employees in the same position.

If you have been given a drug test and unfairly suspended or demoted because of it, your best bet may be to argue that the testers did not meet with the strict requirements for form and procedure set out in your state law.  Employers are free to add safeguards to protect against specimen tampering often requiring those taking the test to remove their own clothing and don hospital gowns.  They might check the temperature of the urine and / or adds dye to toilet water.   Most courts have found it reasonable to have a monitor listen as a urine test is administered while a number have found it an unreasonable invasion of privacy for the monitor to watch.

Even if you have failed an employer’s drug test, you may have legal challenges to the test or to any actions the employer took based on the test results. 

When Is a Suspicion Reasonable?

Many states allow an employer to test for drugs based on a reasonable suspicion that an employee is under the influence. What suspicion is reasonable and what is not is in the eye of the beholder, which makes it a slippery standard indeed.

But some statutes and courts have attempted to set some guidelines that may be helpful if you are targeted for a test and you believe your employer’s suspicions are less than reasonable. A reasonable suspicion of drug use must generally be based on actual facts and logical inferences, such as:

  • Direct observation of drug use or its physical symptoms, including slurred speech, agitated or lethargic demeanor, uncoordinated movement, and inappropriate responses to questions.
  • Abnormal conduct or erratic behavior while at work, or significant deterioration in work performance.
  • A report of drug use provided by a reliable and credible source that has been independently corroborated.
  • Evidence that the employee has tampered with current drug test results.
  • Information that the employee has caused or contributed to an accident at work.
  • Evidence that the employee has used, possessed, sold, solicited, or transferred drugs while working or at work.

In addition, many state laws require employers to maintain workplace counseling and outreach programs before they can test employees.  While most employers these days are too savvy to slip up on procedural details, many of the laws are so picky and detailed that it may be worth your while to make sure your test made the grade.

Drug testing in the workplace can lead to some awkward encounters.  Employees can feel like the employer is against them or that they are being targeted if the topic of drug use is brought up.  For more information see What Is Reasonable Suspicion