There Is No Federal Drug Testing Law for Private Employers in the United States
The following principles are well-established:
There is no
comprehensive federal law that regulates drug testing in the private sector. The
Drug-Free Workplace Act does imposes certain employee education
requirements on companies that do business with the government, but neither
requires nor prohibits testing.
Does an Employer Violate the Americans With Disabilities Act by Requiring a Drug Test?
Drug testing is not forbidden pursuant to the Americans with Disabilities Act (ADA) because the ADA does not consider active drug use a disability (although pursuant to ADA one with a history of drug use who is not currently using drugs may not be subjected to disparate treatment due to inactive addiction), but neither requires nor prohibits testing.
What Federal Agencies Have Mandatory Drug Testing Laws?
Although there is no comprehensive federal drug testing law, certain federal agencies have adopted drug testing regulations for employers under their jurisdiction.
The Department of Defense requires defense contractors to set up procedures for identifying drug users, including random testing.
The Department of Transportation requires the industries it regulates to conduct random drug and alcohol testing for workers in safety sensitive jobs, as well as testing after accidents and when there is “reasonable suspicion” of employee substance abuse.
The federal Omnibus Transportation Employee Testing Act (OTETA) requires testing of all operators of aircraft, railroad equipment, mass transportation vehicles, and commercial motor vehicles in a fashion similar to DoT.
What States Allow Drug Testing of Employees?
Notwithstanding the absence of a comprehensive federal scheme, many states have enacted legislation to govern drug testing in the private sector.
We have reviewed a table of each states regulatory scheme, as set forth in Drug and Alcohol Testing Laws, by State (blr.com). The regulatory schemes are dense, and it is best to specifically review the state laws that govern the applicable jurisdiction that governs your circumstance, and to seek legal counsel for assistance where needed.
That said, there are some generalities that can be gleaned from these state laws (or from a cursory review of judicial decisions).That said, there are some generalities that can be gleaned from these state laws (or from a cursory review of judicial decisions).
Pre-Employment Drug Testing is Permitted in Nearly Every State
· Most states permit pre-employment testing as a condition of employment, either by virtue of statute or judicial decision.
Post-Employment Testing Must Be the Subject of a Written Company Policy
· Most states that permits post-employment testing requires that written notice of the employer’s drug testing policy be distributed to all employees.
Post-Employment Testing Typically Permitted Upon Reasonable Suspicion, Following a Workplace Accident, as Part of a Fit-For-Duty Exam or Following Rehabilitation Program
· States
that permit post-employment testing generally tend to permit same under the
following circumstances:
o Reasonable suspicion
testing based upon observation of possible impairment at work;
o Following an employee’s
return from a rehabilitation program;
o As part of a
Fitness-for-Duty exam under various circumstances (i.e. following an employee’s
return from work injury, etc.); and,
o Following a workplace accident.
· Generally, an employee who fails or refuses a lawful request for a drug test may be terminated, and subsequently will be ineligible for unemployment compensation.
Random
Drug Testing in the United States – State by State Review
It is apparent that the most significant line of demarcation from state to state concerns the authorization of random drug testing. Let’s review.
What States Have Laws Authorizing Random Drug Testing for Private Employers? Most States Do Not Have Laws Authorizing Random Drug Tests for Private Sector Employees
The term “random” does not have a singular meaning. Further, just because a state does not have a statute authorizing random drug testing does not mean that it is conduct such testing! In order to understand your states drug testing laws, best to consult counsel.
14 States (Plus D.C.) Have Laws Authorizing and Permitting Random Drug Testing of Employees of Private Employers With Little or No Limitation
According to our
reading of the blr.com
survey, the following states have a law authorizing random drug testing for private sector
employers, with little limitation:
Alabama
Alaska
Washington, D.C.
Hawaii – Unclear, but it appears it may be allowed if set forth in written drug testing policy
Idaho
Louisiana
Montana
North Carolina
Ohio
Oklahoma
South Carolina
Utah – if pursuant to written employer policy
Vermont
West Virginia – basically permits random drug testing
25 States Do Not Have Any Law Authorizing or Permitting Random Drug Testing for Employee of Private Sector Employees
According to our reading of the blr.com survey, the following states do not have any law authorizing random drug testing for private sector employers (unless indicated, there are drug test laws in the states in question, but the laws do not authorize random testing):
Arkansas
California
Colorado
Florida
Georgia
Illinois
Indiana
Kansas
Massachusetts – has no drug testing law on the books, multiple cases discuss issue
Michigan – has no drug testing law on the books, multiple cases discuss issue
Missouri
Nevada
New Hampshire
New Jersey – has no drug testing law on the books, multiple cases discuss issue
New Mexico
New York – has no drug testing law on the books, multiple cases discuss issue
North Dakota
Oregon – laws focus more on alcohol testing
Pennsylvania - has no drug testing law on the books, multiple cases discuss issue
Rhode Island
South Dakota – drug testing for government workers only
Tennessee
Washington
Wisconsin
Wyoming – has no drug testing law on the books, multiple cases discuss issue
11 States Permit and Authorize Private Employers to Do Random Drug Testing of Employees Under Some Circumstances or With Conditions
According to our reading of the blr.com survey, the following states have laws authorizing random drug testing for private sector employers under certain conditions:
Connecticut – permits random testing only for jobs designated “high risk” or “safety sensitive”
Delaware –only for employers in transportation, nursing or home health corrections facilities
Iowa – only at worksite for entire workforce
Kentucky – no drug testing laws for most private sector employers
Maine – in a number of situations inapplicable to most private employers
Maryland – Unclear, but drug testing may be conducted “if supported by legitimate business reason”
Minnesota – only for employees in “safety sensitive” position, professional athletes
Mississippi – only for employees who have had a positive test within preceding 12-months
Nebraska – but, only for private employers with 6 or more employees
Texas – only permitted for residential childcare employees
Virginia - only permitted for residential childcare employees
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