Thursday, April 8, 2021

Survey of State Drug Testing Laws - What States Have Laws Authorizing Random Drug Tests?

 

There Is No Federal Drug Testing Law for Private Employers in the United States

Check Your State - and Check With Counsel!

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

Arizona

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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