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Workplace Drug Testing Laws

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Our in-house employer drug testing training bundles include everything you need to start drug testing your own employees and maintaining a drug-free workplace. Questions? Call 1-888-390-5574.

Who needs to learn and understand drug testing laws?

Employers, laboratories, collection sites, substance abuse professionals, third-party administrators, medical review officers, and other service agents should be familiar with the workplace drug and alcohol testing laws in the state or states in which they operate. However, employees, labor unions, and labor and employment attorneys also benefit from the information provided in these courses.

When and how often should you take a course on drug testing laws?

Whether through legislation such as a medical marijuana bill or through common law such as a recent and important court case, the law on drug and alcohol testing in the workplace is one of the most rapidly evolving categories of the law. Therefore, we highly recommend taking one of these courses for each state in which you operate annually.

Where can you take a drug testing law course?

All of our courses are available online and on-demand. You can enroll by selecting the state or states below in which you operate, continue through registration, and a set of login instructions will be emailed to you within minutes. In some instances, this information may be delayed if the course is undergoing an important update or review to ensure the most current drug and alcohol testing law information is conveyed.

Why are drug testing laws so important to understand?

Risk

A prospective employee admits to using marijuana but has evidence of a legal marijuana prescription. Your policy prohibits the use of marijuana. Is this a violation? It depends on the state. In some states considering this a violation is against the law as prohibited discrimination, in another state you may be subject to liability for negligent hiring practices if you place her in a safety-sensitive position and she causes injury.

Money on the Table

Studies show that drugs and alcohol in the workplace contribute to more accidents, absenteeism, lower productivity, and decreased morale which create indirect costs on the workplace. It often makes sense for an employer to adopt a program. Many states provide financial incentives for adopting a drug and alcohol free workplace program in the form of workers’ compensation insurance premium rebates or discounts. These benefits are unique to the state, but you may never learn about them unless you take a workplace drug and alcohol testing course.

Lawful Activity

High turnover employers prefer to get drug and alcohol testing results instantly. Many resort to instant testing urine or saliva to achieve this goal. However, is this method lawful? This depends on the state, whether the employer has adopted a policy under the state voluntary drug-free workplace program or independent of it, and the general procedures in how a non-negative result is carried out. Understanding the state drug and alcohol testing laws is an important step in avoiding unwittingly committing unlawful activity.

Better Negotiations

Employers and labor unions often fiercely negotiate the terms of a drug-free workplace program. Critical to this negotiation process is actually knowing what limitations the state may or may not place on the terms of that bargain. Likewise, employers and their service agents (laboratories, medical review officers, collection sites, etc.) often engaging in negotiations on the price and extent of services to be rendered in the implementation of a drug-free workplace program. Both parties are at an advantage if they can express a solid understanding of the status of the laws in the state(s) which are the subject of the negotiations.

Alabama (AL)

Under Alabama law, a private employer has the option to opt-in to the state Drug-Free Workplace program which provides a workers’ compensation premium discount to those who comply.

The intent of this program is to promote drug-free workplaces so that employers could maximize their levels of productivity, enhance their competitive positions in the marketplace and reach their desired levels of success without experiencing the costs, delays, and tragedies associated with work-related accidents resulting from substance abuse by employees.

Employers create a policy that conforms with the program and apply for a certification to be awarded the discount. Employers have no legal duty to implement a drug testing policy and have the sole discretion to follow the program.

The Alabama Administrative Code added supplemental provisions to the Drug-Free Workplace program that also needs to be followed; employers should review all related statutes to ensure proper compliance.

Alabama’s Workers’ Compensation and Unemployment statute require that employees follow the Federal Department of Transportation procedures or similar reliable procedures.

Alaska (AK)

Alaska has a voluntary drug testing law. For companies that wish to qualify for limited legal protections, they must comply with this law.

In order to receive the benefits of the law, employers must implement a comprehensive policy and must adhere to a specific collection, testing, and confidentiality procedures.

The statute provides a rebuttable presumption that tests performed that followed the statute are accurate.

The law also allows for on-site testing; in order for employers to include on-site testing in its policy training and certification of the employer is required.

Medical Marijuana and Recreational Marijuana are both legal in the state; Employers are not required to make accommodations for either Marijuana use.

Arizona (AZ)

Under Arizona law, there is no requirement for private employers to implement a drug-free workplace policy. However, if an employer chooses to implement a policy, the employer should abide by Arizona’s voluntary drug testing statutes in order to receive protection from the state.

Arizona’s drug-free testing statutes provide employers protection if they abide by all the requirements in the statute. Employers can be guarded against litigation, causes of action, and defamation suits as long as they follow the statute and do not fall within one of the exceptions.

The State of Arizona has allowed the use of Medical Marijuana and this has brought some issues with drug testing and workers’ compensation laws. Employers need to avoid discriminating against an employee solely because of the employee’s status as a registered Medical Marijuana Cardholder.

Arkansas

Arkansas has implemented a drug-free workplace program that gives employers incentives when followed.

This was created to maximize the levels or productivity and enhance competitive positions in the marketplace without experiencing delays, accidents, and costs. It was further the intent of the legislature to discourage drug and alcohol abuse which could lead to denial of unemployment and workers’ compensation benefits.

Generally, the program has adopted drug and alcohol procedures from the United States Department of Transportation, but there are still other requirements that must be followed. Employers should be mindful that Arkansas has passed a Medical Marijuana law; this statute provides certain protections to individuals who hold a Medical Marijuana card.

California (CA)

The State of California has limited drug testing rules and protocols by code or statute.

For most private employers, California does not a have specific set of drug testing rules and protocols to follow when establishing a drug-free workplace policy; however, California’s case law determines which actions private employers can and cannot take regarding drug testing in the workplace.

The California State Constitution includes a right to privacy which extends to employees of privately-owned businesses.

Courts will perform a balancing test between an employer’s legitimate interest in maintaining a safe drug-free work environment and an employee’s right to privacy to determine whether a policy unconstitutionally discriminates against the employee.

In comparison to most other states with conflicts in similar circumstances, courts in California are more likely to rule in favor of an employee’s privacy interest than an employer’s right to drug test.

Colorado (CO)

Under Colorado drug and alcohol testing law, there are few restrictions on employers who implement a drug-free workplace policy.

Colorado has passed statutes allowing the use of Medical Marijuana and Recreational Marijuana. However, courts have recognized that employers are under no obligation to accommodate the use of Marijuana.

Employers should also keep in mind that the level of Marijuana that is considered to be “under the influence” has not been established by case law.

Employers should consider implementing the drug testing requirements under the unemployment statute if it chooses to adopt a drug-free workplace policy in order to successfully deny unemployment benefits to employees in violation of its drug-free workplace policy.

In addition, the City of Boulder has implemented its own drug and alcohol testing requirements for all employers who conduct a business within the city limits. Drug and alcohol testing requests must be supported by reasonable suspicion.

An employer who wishes to implement a drug testing policy must follow The Boulder Municipal Code. Note that the Boulder Municipal Code has implemented exemptions to its code.

Connecticut (CT)

Connecticut has enacted a specific statute that set requirements to private employer drug and alcohol testing.

The importance of an individual’s privacy rights was the key root of the testing in the statute because the only reason allowed for testing is under reasonable suspicion; the statute also explicitly states that employee or prospective employee shall not be supervised while providing specimen.

Random testing in mentioned in the statute but is only under specific requirements. An employer who violates the statute may be sued by the employee or prospective employee and awarded damages.

Employers should also keep in mind that the state has passed its own Medical Marijuana Act, therefore should avoid discriminating against an individual who retains a Medical Marijuana Card.

Under case law, courts have interpreted that individuals who are discharged for testing positive for Marijuana and hold a medical card have a right to a cause of action against an employer. Before drafting a drug testing policy private employers should review all rules and regulations to ensure they are following the state laws.

Delaware (DE)

Under Delaware law, private employers have the right to implement their own drug-testing policy.

 The state does no provide a guide or code that employers need to follow when creating its own testing policies, however, if an employer does want to implement a drug testing policy they should follow general standards.

Employers should also keep in mind that Medical Marijuana is legal in the state of Delaware, therefore should be conscious not to discriminate an individual based on a medical condition even though they might test positive for marijuana.

The Medical Marijuana statute provides protections for employees if an employer discriminates for holding a Medical marijuana card, However, there are exceptions to these protections.

Florida (FL)

This Florida Workplace Drug & Alcohol Testing Laws course provides private employers and interested employees in Florida a summary of the current law in Florida as it relates to drug and alcohol testing.

The course has been designed for the benefit of both legal and non-legal professionals. We have attempted to improve readability by avoiding “legalese” whenever possible and by keeping the important points clear and concise.

Florida drug and alcohol workplace testing laws generally favor a reasonable employer. Florida’s at-will employment law gives employers a great deal of discretion when it comes to hiring and firing their employees.

This means that employers in Florida, by default, have nearly limitless discretion on whether to adopt a policy and if so, how to adopt the rules for their drug-free workplace program.

However, employers who wish to qualify for discounts on their workers’ compensation premiums have the option to opt-in to the voluntary drug-free workplace program under the Workers’ Compensation Statute, Fla. Stat. §440.102. Complying with this statute will narrow the options of the employer on how to conduct the company drug-free workplace policy, but in return allows employers who do adopt the program a 5% discount credit on Workers’ Compensation premiums.

Georgia (GA)

The State of Georgia has statutes that regulate workplace drug and alcohol testing.

Employers in the private sector are not required to follow these regulations but are encouraged to do so in order to receive Workers’ Compensation premium discounts. The intent of the state is to maximize the levels of productivity, enhance competitive positions in the marketplace, and reach desired levels of success without experiencing the costs, delays, and tragedies associated with work-related accidents resulting from employee substance abuse.

The Drug-Free Workplace Program is regulated by the board of Workers’ Compensation and is responsible for issuing certifications that conform to the statute.

The Program created a detailed overview of what is required in an employer’s Drug-Free Workplace policy and is required to meet all the regulations to receive premium discounts. Employers should also review Unemployment and Workers’ Compensation Denial statutes for additional regulations that could be implemented into their Drug-Free Workplace Policy.

The Drug-Free Workplace Program statute guards employee privacy rights to ensure that employers collect specimens in a non-intrusive manner.

The statute also prevents employees from bringing a claim against an employer if the employer chooses not to implement a substance abuse program. It also expresses the importance of confidentiality and makes clear that when an employer implements a drug testing policy there is no physician and the patient relationship created when the employee undergoes a drug or alcohol test.

Hawaii (HI)

Hawaii statute does not regulate the circumstances under which drug and alcohol testing can be conducted but does specify the procedures that must be followed for drug and alcohol testing.

The purpose is to ensure that appropriate and uniform drug and alcohol testing procedures are employed throughout the State, to protect the privacy rights of persons tested, and to achieve reliable and accurate results.

These statutes do not apply to testing regulated by the Hawaii Department of Transportation, the United States Department of Transportation, or any other federal agency. The standards of testing blood alcohol concentration, including personnel qualifications, procedures, and result reporting must be established by the Department of Health.

Idaho (ID)

The Idaho statute allows drug testing by employers and works as a guideline of how employers should create their policies.

The purpose of the act is to promote alcohol and drug-free workplaces and otherwise support employers in their efforts to eliminate substance abuse in the workplace, and thereby enhance workplace safety and increase productivity.

Although the statute states that a workers’ compensation premium discount can be awarded it does not specify the amount; insurers are responsible to determine the percent discount and qualifications, there is no mandatory discount.

The statute makes it clear the testing must be conducted in a manner that complies with the federal Americans with Disabilities Act.

The program limits the cause of actions against employers who rely on positive tests and does not allow any causes of actions if the employer decides not to implement a drug and alcohol testing policy.

Illinois (IL)

Illinois law does not require private employers to implement drug testing policies.

Employers are free to create a policy that conforms with the job requirements. Employers should always be mindful of employees’ right to privacy and disability discrimination when creating a drug-free policy.

If an employer chooses to have a drug-free policy they must comply will all regulations in the Illinois Workers’ Compensation Act.

Indiana (IN)

Under Indiana law, private employers can choose to implement a drug free workplace policy.

Indiana statutes allow employers to use the standards in the Federal Department of Transportation regulations and encourage the following of the Federal Drug Free Workplace Act.

Indiana has an Employment Disability Discrimination statute that explicitly states that it does not encourage nor prohibit drug testing in the workplace, but the state does give guidance to employers on what they may do when implementing a drug testing policy.

Iowa (IA)

Under Iowa law implementing a drug-free workplace policy is optional. However, if an employer chooses to implement a drug-free workplace policy it must abide by the state statues.

The statute regulations do not apply to employees who are subjected to the Federal Department of Transportation. The statute is very specific and detailed as to when drug testing can be conducted and the procedures for drug testing.

If employers substantially abide by the rules in the statute, it offers an employer immunity from a lawsuit that may arise under it. Employers are expected to act in a reasonable and in good faith manner when enforcing its drug-free testing policy.

The state of Iowa has also implemented statues that regulate confirmatory laboratories for private sector drug-free workplace testing; employers should ensure that the laboratories performing its drug testing abide by these statutes (see Iowa Admin. Code r. 641-12. (1)-(12) (730).

Kansas (KS)

Under Kansas law there is no mandatory requirement for a private employer to implement a drug-free workplace policy.

Drug testing requirements have been implemented in Workers’ Compensation and Unemployment statutes.

Employers in the private sector are ultimately free to create its own policies but if they wish to deny benefits due to positive test results it must abide by the statute.

Laboratories in Kansas are highly regulated, they must be properly licensed and certified to conduct chemical testing.

Kentucky (KY)

Kentucky has a Drug-Free Workplace program that establishes the requirements for employers to apply and be certified by the Department of Workers’ Claims for implementing a drug-free workplace program.

To promote working environment safety and work productivity employers may be eligible to receive a 5% discount on their workers’ compensation premiums. Application for this discount must be done annually and employers and supervisors must have maintained drug and alcohol training annually.

The law is very comprehensive and provides detailed guidance on drug and alcohol testing. Employers should review the statute to ensure all requirements are complied with before applying for the workers’ compensation discount.

Louisiana (LA)

Under Louisiana law a private employer is only required to follow minimal regulations. However, Louisiana’s Workers Compensation statute and administrative code has set very strict requirements employers must follow in order to deny workers’ compensation benefits.

Following the worker’s compensation and unemployment statute is not mandatory but if followed can provide safety precautions. The statute gives employers liability protection if there is compliance with the rules.

Before implementing a drug-free testing policy employers should review workers’ compensation regulations to ensure they are following with the statute requirements. Louisiana has also passed its own Medical Marijuana Act, which means employers must be mindful not to discriminate against employees with disabilities.

The statute does not specify whether if the employer maintains the right to test. The Medical Marijuana Act has been recently appealed and has amended several terms in the statute, the employer should maintain current in the changing law in order to implement a policy that does not discriminate.

Maine (ME)

If an employer wishes to implement a drug testing policy it must follow Maine’s drug testing laws.

The statute neither requires or encourages drug testing in the workplace but it is in place to protect the rights of employees while allowing employers to administer test.

The statute also geared to ensure that employees with substance abuse problems are given the opportunity for rehabilitation and can return to work as quickly as possible.

The authorizing statute is very specific in many areas; therefore, it is required that the employer use both the statute and Department of Labor and Human Service’s rules in developing a policy. Maine has also implemented an Administrative Code that runs parallel to the main statute.

The Code encourages employers to write the policy as a narrative and sets guidelines on what to include. Medical Marijuana and Recreational Marijuana are legal in the state.

However, employers do not have to accommodate such use. Due to its recent enactment there is barely any case law that addressed the issue of outside conduct and the workplace.

Maryland (MD)

Maryland drug testing laws do not prohibit or enforce employers in the private sector to implement a drug-free workplace policy. However, if employers decide to implement such a policy, it must follow the statute’s rules and regulations.

The statute does not specify under what conditions an employee can be tested for but does regulate how a test can be conducted. The purpose of enacting the statute is to protect employees, employers, and the public by setting fair and effective job-related alcohol and drug testing standards to ensure accurate and reliable test results and promote drug-free workplaces.

There are separate requirements for job-related testing and preliminary testing; the statute allows employers to perform preliminary testing at the workplace.

Medical Marijuana is allowed in the state, so employers should be cautious when performing drug testing to avoid disability discrimination. The statute protects the state for the use of medical marijuana but is silent on whether the statute applies to private employers.

There is currently proposed legislation to include provisions of Medical Marijuana in the Workers Compensation Statute.

Massachusetts (MA)

Massachusetts legislation does not address drug testing in private employment; however case law has specified that random drug testing may be subject to be weighed on a case by case basis and courts will balance the employee’s privacy rights to the employer’s interest.

Massachusetts unemployment law and workers compensation law does not specify drug testing procedures or requirements; therefore, employers are free to implement a policy that conforms with employee positions and job duties.

Marijuana is legal medically and recreationally. An employer with drug testing policy that tests for Marijuana may be subject to a disability discrimination claim under Massachusetts law if the employer takes an adverse employment action or otherwise discriminates against a “qualified handicapped employee” based on the employee’s off-site, off-duty use of lawfully-prescribed medical marijuana.

Michigan (MI)

Under Michigan law, there are very little limits on the rights of private employers to implement their own drug-testing policy. However, tests must be administered in a “nondiscriminatory manner” – this means impartially and objectively in accordance with a collective bargaining agreement, rule, policy, a verbal or written notice, or a labor-management contract.

Private employers should also keep in mind that Medical Marijuana is legal in the State of Michigan. According to Michigan case law, employers retain the right to discharge an employee if they test positive for Marijuana even with a valid prescription.

However, employees discharged for a positive marijuana result with a valid medical card may recover unemployment benefits. Employers should be cautious; other jurisdictions have found this same conduct to be discriminatory against individuals with disabilities.

Minnesota (MN)

Minnesota has a drug testing statute that all employers must follow.

The purpose of the statute is to provide protection of employers, employees, and the public by setting fair and effective job-related alcohol and controlled dangerous substances testing standards to ensure accurate and reliable test results and to promote drug-free workplaces.

The statute specifies that an employer may not request or require and job applicant or employee to undergo drug and alcohol testing on an arbitrary and capricious basis. Case law has developed the meaning that testing must be done rationally. Additionally,

Employers should also keep in mind that Medical Marijuana is legal in the state of Minnesota, therefore should be conscious not to discriminate an individual based on a medical condition even though they might test positive for marijuana.

Mississippi (MS)

Mississippi enacted a Drug-Free workplace program that provides workers’ compensation discount if followed.

This law is voluntary on the part of employers who will only gain its protections if they elect to conduct drug-testing under the law.

The intent of the Legislature to promote drug-free workplaces in order that employers be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions in the marketplace, and reach their desired levels of success without experiencing the costs, delays, and tragedies associated with work-related accidents resulting from substance abuse by employees.

Compliance with the statue is not required to deny workers compensation and unemployment benefits. If an employer opts-in to the program and knowingly or recklessly violates the program, then the employee may raise of cause of action against the employer.

Missouri (MO)

Under Missouri law, there are few restrictions on employers who implement a drug-free workplace policy.

However, employers must follow the requirements under the Missouri Employment Security Law if an employer wants to deny unemployment benefits to employees who test positive for drugs or alcohol.

In December of 2018, Missouri passed statutes allowing the use of Medical Marijuana. The Medical Marijuana Act does not allow claims against employers for discharging or denying employment to employees who are under the influence of Marijuana.

Montana (MT)

Under Montana law there are specific rules private employers must follow to have a qualified drug testing policy.

The statute provides specific guidelines on what to implement in its policy. The statute also provides protections to employees from employers which allow employees to rebut positive drug test results.

If employees have a reasonable explanation or medical opinion for positive test results employees cannot take adverse action against the employee. All drug testing results must remain confidential.

Montana statute has explicitly listed exceptions when drug testing results can be released. Employers should carefully review the state statute and ensure that its policy meets all the requirements.

Nebraska (NE)

Under Nebraska law, private employers are not required to perform drug tests on their employees.

The intent of the Nebraska legislature is to help with the treatment and elimination of drug and alcohol use and abuse in the workplace while protecting employee’s rights.

If an employer chooses to implement a drug testing policy, the employer must abide by Nebraska’s statutory requirements.

The requirements are broad; the statute does not restrict the circumstances in which employers can test employees, rather they set guidelines for specimen collection for drug testing.

Nevada (NV)

Under Nevada law, there are now limitations on private employers’ ability to implement their own drug-testing policy. Workers’ compensation laws in Nevada contain their own drug testing requirements.

Employers are not required to comply unless they wish to deny workers’ or unemployment compensation claims.

Employers should also keep in mind that Medical Marijuana is legal in the state of Nevada; therefore, employers should be conscious not to discriminate against an individual based on a medical condition even though they might test positive for Marijuana.

Beginning on January 1, 2020, employers will be prohibited from conducting pre-employment testing on most employees.

New Hampshire (NH)

Under New Hampshire law there is limited restrictions on employers to implement a drug-free workplace policy.

Employers can freely create a policy that corresponds with work responsibilities and employee’s duties.

New Hampshire has passed statues allowing the use of medical marijuana. However, the Medical Marijuana statute recognized that employers are under no obligation to accommodate the use of Medical Marijuana.

New Jersey (NJ)

Under New Jersey law there are limited rules and regulations limiting the rights of private employers to implement their own drug-testing policies. However, New Jersey case law has reinforced citizen privacy rights under the state constitution against unreasonable searches and seizures.

Employers can only implement random drug testing for “safety sensitive” positions, and courts will analyze whether a position poses a threat to work safety or the public.

New Mexico (NM)

Under New Mexico law there are few restrictions on employers in the implementation of a drug-free workplace policy.

New Mexico has passed statutes allowing the use of Medical Marijuana; however, courts have recognized that employers are under no obligation to accommodate the use of Medical Marijuana in the workplace.

Employers should also keep in mind that New Mexico workers’ compensation law has imposed a few requirements that need to be followed in order to deny or reduce benefits.

An employee can be denied unemployment if they were discharged for misconduct; this means, as the employer, if your drug-free workplace testing policy states that testing positive for a drug test or bringing illicit substances into the workplace is misconduct, then generally unemployment benefits may be denied.

New York (NY)

The State of New York has not passed laws restricting or regulating an employer’s right to require drug testing.

New York State has no legislation that directly addresses drug and alcohol testing for those employed in private corporations or businesses generally.

However, New York has adopted a Workers’ Compensation discount program as an initiative to encourage and reward employers that have implemented or plan to implement a quality, cost-effective safety incentive program, drug and alcohol prevention program, or return-to-work program.

In addition, New York City has enacted laws prohibiting employers from testing for Marijuana in most pre-employment situations.

North Carolina (NC)

The state of North Carolina has implemented regulations of how an employer conducts drug testing; however, these regulations do not state under what circumstances an employer can conduct a test.

Employers have no duty to conduct controlled substance examinations. If an employer has employees that fall under FDOT regulations, then the North Carolina statue regulations will not apply to its drug testing policy.

North Carolina has also implemented an administrative code that add additional requirements to employers when implementing a drug testing policy.

North Dakota (ND)

Under North Dakota law there is limited restrictions on employers to implement a drug-free workplace policy.

North Dakota has passed statues allowing the use of medical marijuana. However, the statute states that the Act does not intervene with an employer’s ability to discipline and employee who uses Marijuana on the premises or reports to work under the influence.

North Dakotas worker’s compensation statute sets a few requirements that employers must abide if they want to deny benefits to employees who are injured due to their voluntary intoxication.

The unemployment statute does not provide any rules required for drug testing; employers are still required to inform employees that a violation of work policy including a drug testing policy is considered misconduct.

Ohio (OH)

Under Ohio law, there are no requirements for private employers to implement a drug-free testing policy.

However, the State of Ohio does encourage employers to implement such a policy by providing Workers’ Compensation premium discounts for implementing a policy that follows Ohio’s Drug-Free Safety Program.

The Ohio statute has set the eligibility requirements and type of programs available for employers to choose from. The program overall follows federal regulations.

In Ohio, drug and alcohol addiction is considered a disability so employers cannot discriminate against an employee if he or she informs them of their addiction.

Additionally, Ohio employers should keep in mind that Medical Marijuana is legal in the state; however, employers can still test for Marijuana and its metabolites and discharge employees for positive results.

The Medical Marijuana statute implements protections for employers such as defining positive test results as “just cause” for termination and does not allow a cause of action against an employer for discharging or refusing to hire an employee who tests positive despite having a Medical Marijuana card.

Oklahoma (OK)

Oklahoma has in place a drug and alcohol testing statute for employers who want to implement this type of testing in its business.

Employers are required by law to follow the regulations if testing is implemented. The law provides several remedies to employees when an employer fails to properly follow the statute. Oklahoma has also passed Medical Marijuana; employers should take caution to ensure that they do no discriminate employees or prospective employees who carry a Medical Marijuana card.

The statute protects individuals from being discharged if their drug test comes back positive for marijuana. However, the statute lists several exceptions when an employee can take action against an employee who does test positive.

Oregon (OR)

Under Oregon law, there are limited restrictions on employers to implement a drug-free workplace policy.

Although there are limited restrictions on employer drug testing, the state has created detailed laboratory regulations that can impact employment testing.

If an employer chooses to provide instant testing, there are specific rules and types of instant testing that must be used. Oregon has passed statues allowing the use of medical marijuana and recreational marijuana.

The Oregon courts have recognized that employers are under no obligation to accommodate the use of marijuana.

Pennsylvania (PA)

Under Pennsylvania law, there is no legislation that limits private employers to implement their own drug-testing policy.

The Commonwealth of Pennsylvania ensures that a drug testing policy will be upheld as long as there is no violation of the law or the collective bargaining agreement.

Rhode Island (RI)

Under Rhode Island law, employers may drug test employees if reasonable grounds exist to indicate that the employees are under the influence of controlled substances or impaired while performing their job.

This means random testing is not allowed. The employee drug testing statute also imposes consequences for employers who do not follow the requirements in the statute.

Employers should also keep in mind that Medical Marijuana is legal in the state of Rhode Island, therefore it should be conscious not to discriminate an individual based on a medical condition even though they might test positive for marijuana. The Supreme Court of Rhode Island has already ruled that a job applicant cannot be refused employment if he or she holds a Medical Marijuana card.

South Carolina (SC)

The State of South Carolina has implemented drug and alcohol testing regulations which include a provision for obtaining a discount on workers’ compensation premiums; however, these regulations do not mandate all circumstances in which an employer can conduct a test.

South Carolina adopted this voluntary statute to encourage employers in the state to adopt drug prevention programs in the workplace. However, employers are not obligated to follow the discount program.

For those who opt-in, the program does require random drug testing on all paid employees. Marijuana remains illegal for medical and recreational use.

South Dakota (SD)

Under South Dakota law there are no restrictions on an employer to implement their own drug-testing policy.

Workers’ compensation laws in South Dakota state that workers compensation claims can be denied if intoxication caused the injury; However, employers have the burden to prove that the intoxication was the proximate cause and a substantial factor of the injury.

Marijuana remains illegal recreationally and medically in South Dakota.

Tennessee (TN)

Tennessee has a voluntary drug testing law.

For companies that wish to qualify for 5% discount of its workers’ compensation premiums, they must comply with the requirements under the statute. This program is completely voluntarily, but if an employer does not comply, workers’ compensation and unemployment claims arising out of positive drug test results will not be denied.

Tennessee created the Drug-Free Workplace Program to maximize the levels of productivity, enhance their competitive positions in the marketplace and reach desired levels of success without experiencing the costs, delays, and tragedies associated with work-related accidents resulting from drug or alcohol abuse by employees.

Employers are required to provide training and education of its drug testing policy only once and must submit a certification to the Bureau of Workers Compensation. This certification is renewed annually but retraining is not required.

Texas (TX)

Under Texas law there is very little limitation placed on private employers in the implementation of a drug-free workplace policy.

An employer can perform a drug test for a wide variety of reasons including in pre-employment context, as part of a random testing program, after a qualifying accident, under reasonable suspicion, or as part of a return-to-duty agreement.

However, the State of Texas requires certain elements to be met when implementing a drug testing policy in order to qualify for certain unemployment and workers’ compensation benefits.

Employers must give adequate notice and have implemented a proper procedure for including chain of custody for testing for drug and alcohol tests.

Utah (UT)

Under Utah law, there are drug and alcohol testing requirements that an employer must follow if they wish to have the protection it offers.

The intent when creating the statute was to provide a healthy, safe, and productive workplace, free from the effect of drugs and alcohol. The importance of producing quality products and services is important to employers, employees and the general public.

The legislature found that there was an increased risk of injuries, absenteeism and financial burdens that were created by drug and alcohol abuse and to prevent this was the statute was created. Unemployment and Workers’ Compensation benefits can be denied if the employer followed the requirements under the drug and alcohol statute; They must also follow all the requirements under the specific unemployment or workers comp. statute as well.

An employee may seek damages or job reinstatement if the employer’s test results were inaccurate. Overall the statute prevents an employee to bring a lawsuit to the employer who complies with the rules in the statute.

Virginia (VA)

Under Virginia law, there are almost no limitations of private employers to implement their own drug-testing policy. The state does provide employers workers’ compensation discounts if a drug-free workplace policy is implemented but gives discretion for the requirements to employers and its insurers. Virginia statute also allows workers compensation and unemployment denial but there are few restrictions of the requirements employers must meet.

Washington (WA)

Under Washington law, there are few restrictions on employers who implement a drug-free workplace policy. Washington has passed statutes allowing the use of Medical Marijuana and Recreational Marijuana. However, courts have recognized that employers are under no obligation to accommodate the use of Marijuana. Employers should also keep in mind that there is no statute that will automatically deny workers’ compensation for testing positive for Marijuana. An employee can be denied unemployment if the employee was discharged for misconduct. This means, as the employer, if your drug testing policy states that testing positive for drug or alcohol is misconduct amounting to a terminable offense, then unemployment benefits may be denied.

West Virginia (WV)

West Virginia has incorporated the Safer Workplace Act, which provides a broad spectrum of when employers can drug test. Employers who abide by the statute are given immunities. The statute makes it clear that an individual right to privacy is outweighed by public policy, as long as the employer abides by the statute. Case law has set restrictions on when there is no right to privacy. Employers should also carefully consider privacy and employee drug testing in West Virginia and how they handle employees who test positive. The Act also provides employers another gate for unemployment and workers’ compensation denial. Medical Marijuana is legal in West Virginia, the act provides protection to employees who hold a medical marijuana card unless they report to work under the influence of Medical Marijuana. Employers should advise with legal counsel before implementing a drug testing policy to ensure all provisions in the statute are included and followed.

Wisconsin (WI)

Under Wisconsin law, there are very little limitations on the ability of private employers to implement their own drug testing policy. However, Wisconsin’s Workers’ Compensation statute indicates that employers should expect employees to obey reasonable substance use and abuse policies and provide notice to its employees of those rules. The only major restriction of mandatory drug testing is on contractors who are awarded public works contracts. Contractors are required to follow the regulations under substance abuse prevention on public works and public utility projects statutes.

Wyoming (WY)

Wyoming has a voluntary drug testing law. For companies that wish to qualify for a 10% discount on their workers’ compensation premiums, they must comply with this law. The Wyoming statute only provides the discount program and information on how employers can submit an application. The Wyoming Workers’ Compensation Division consists of several regulations that explain drug and alcohol procedures. Generally, the Wyoming statute follows the United States Department of Transportation guidelines. Medical and Recreational Marijuana remains illegal in the state.

Puerto Rico (PR)

Puerto Rico implemented a drug testing statute that private employers must follow.

The intention of the statute is to promote the health and safety of workers and, consequently of the community in general, providing the safeguards needed for the protection of the intimacy and personal integrity of the individual thus affected.

The statute does not mention alcohol testing, but it is not expressly prohibited by law. Employers should review the statute carefully because it lists several positions that require mandatory testing. 

The statute allows different modes of testing, the way it has been written can be inferred that the most appropriate mode of testing is using urine.

Puerto Rico passed its own Medical Marijuana Act, however nothing in the statute prevents employers from testing for Marijuana or its metabolites.

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