Frequently Asked Questions

Drug testing laws directly affect how employers maintain a safe, compliant, and productive work environment. By clarifying who can be tested, when tests may occur, and which substances can be screened, these laws help ensure fair treatment of employees, reduce legal exposure and create opportunities for cost-saving incentives. Most importantly, ongoing training and education in this area empower employers to stay current with ever-evolving regulations.

A Brief History of Drug Testing

Federal oversight of workplace drug testing began in earnest with the Drug-Free Workplace Act of 1988, requiring certain federal contractors and grantees to uphold drug-free policies. Since then, each state has introduced its own rules, creating a complex landscape of laws governing testing methods, employee rights, and allowable policies. For example:

• California, Minnesota, and Vermont have stricter regulations, often limiting when and how testing can occur.
• Florida and Texas, on the other hand, offer more flexibility, allowing employers greater control while still following core guidelines.

The Costs of Non-Compliance

Ignoring or misunderstanding drug testing laws can be costly. Employers may face:

• Legal Liability: Discrimination claims can arise if employees face penalties for legally prescribed medications or lawful medical marijuana use.
• Negligent Hiring Lawsuits: Without proper testing, placing an unqualified individual in a safety-sensitive role could lead to serious accidents and subsequent litigation.
• Financial Penalties: Non-compliance can result in fines, sanctions, and damage to an organization’s reputation.

Financial Benefits

Staying compliant doesn’t just prevent problems—it can also improve the bottom line. Many states incentivize employers to maintain drug-free workplaces:

• Insurance Discounts: Employers in states like Florida, Georgia, and Tennessee may qualify for workers’ compensation premium reductions when they establish state-approved drug testing programs.
• Reduced Indirect Costs: A well-managed, drug-free workplace tends to have fewer accidents, reduced absenteeism, and increased productivity, all of which contribute to long-term savings.

State-Specific Considerations

Laws differ significantly from one state to the next, making training and continued education vital. For instance:

• Marijuana Regulations: In states like New York and Arizona, employees certified for medical marijuana use have certain protections, whereas states like Florida maintain zero-tolerance policies.
• Testing Methods: Instant testing (e.g., saliva or urine) may be restricted in states like California or Minnesota unless conducted under specific protocols.

Staying Compliant

Employers can confidently navigate this legal landscape by taking proactive steps:

• Create a Clear Policy: Draft a written drug testing policy that meets federal and state standards.
• Stay Informed: Track changing laws, mainly as marijuana legalization evolves.
• Invest in Training: Enroll in workplace drug and alcohol testing courses to gain state-specific knowledge and identify financial incentives for compliance.

By understanding and adhering to drug testing laws, employers protect their workforce, avoid unnecessary legal and financial risks, and potentially unlock cost-saving opportunities. Ongoing training, policy refinement, and a commitment to staying informed ensure a safer, more productive, and fully compliant workplace.

Drug tests are used to detect the presence of illegal or prescription drugs.[1] Employers may require job applicants and employees to submit to drug testing either during the hiring process or after being hired. There are several reasons to test, the most common reasons include: pre-employment, random, reasonable suspicion/for-cause, and post-accident drug testing. Unique to post-substance use and abuse treatment programs, employers may test before an employee returns to duty and as part of a follow-up program overseen by a substance abuse professional.

Drug testing laws vary from state to state, so employers must be diligent in efforts to ensure compliance with applicable state and/or federal laws.

The United States Department of Transportation (“DOT”) drug and alcohol testing regulations do not address who is responsible for paying for drug or alcohol testing in most circumstances.[2] The employer and the employee can bargain and agree as to which party is to pay for the drug or alcohol test.[3] However, when an employee requests a split specimen test, the employer must make sure the test is done, even if the employer has to pay for it first. The employer may then seek payment or reimbursement from the employee if the employer’s policy or a labor agreement makes the employee responsible for the cost.[4] The employer cannot hold up the split specimen test while waiting for the employee to pay.[5]

Drug and alcohol testing programs not subject to federal regulations like the DOT are subject to the applicable state law. There is no uniform drug and alcohol testing law across the United States and thus the rules vary from state to state, making compliance challenging. For example, in the State of Florida, an employer who has adopted the state’s voluntary drug-free workplace program for workers’ compensation insurance premium discounts is required to cover the cost of all employee drug tests required by the employer.[6] The statute covers both initial and confirmation drug tests required by the employer.[7] In Florida, an employee or job applicant is only required to pay for any additional drug tests that are not required by the employer if the employer is participating in the voluntary drug-free workplace program.[8] However, an employer may choose to implement a drug-free workplace program and not opt in to the voluntary program. In so doing, the employer would not be subject to the aforementioned requirements. Under a similar voluntary program in Georgia, an employer is required to pay “the cost of all drug tests, initial and confirmation, which the employer requires of employees.”[9] The employee or job applicant is required to pay for any test that is not required by the employer.[10]

The State of North Carolina makes employers responsible for the initial costs of all drug testing.[11] The North Carolina Administrative Code provides that “[t]he examiner shall pay expenses related to all controlled substance examination except examinee-requested retest.”[12] Therefore, under North Carolina law, the employer cannot make the employee or applicant pay for a drug test unless it involves a retest requested by the employee, just like Georgia and Florida.[13] The law does not seem to distinguish between pre-employment drug tests and random drug tests. Thus, an employer is likely responsible for the costs of drug testing whether the individual is a current employee or a prospective employee. Like the State of North Carolina, Maryland allows employers to require employees to submit to drug tests and all expenses should also be assumed by the employer.[14] Under Maryland law, a person is required to pay for any independent test conducted for the purpose of verification.[15] However, Texas law leaves it up to the employer to determine who should bear the cost of pre-employment testing.[16] The Texas Workforce Commission cautions employers who shift that burden to be cognizant of other indirect impacts which may lead to concerns with the Equal Employment Opportunity Commission (EEOC) and the United States Department of Labor.[17]

Employers who are considering whether to charge their employees for a drug or alcohol test must first determine whether the test is federally regulated or regulated by state law. DOT regulations, for example, leave that to the employer and, if applicable, collective bargaining. If regulated under state law, is the program subject to the strict requirements of a voluntary drug-free workplace policy, subject to no state regulation, or some state regulation? In addition, even if the law allows an employer to place the burden of the test on the employee, if its implementation creates a noticeable negative impact on protected classes, the EEOC and the Department of Labor may act to prohibit it. Any such change to a policy should be made in consultation with an experienced employment law attorney.

References:

[1] Drug Testing, MedlinePlus, https://medlineplus.gov/lab-tests/drug-testing/ (last visited Aug. 17, 2020). [2] Frequently Asked Questions, U.S. Dep’t Transp., https://www.transportation.gov/odapc/faq#Who-pays-for-the-DOT-drug-or-alcohol-test-or-SAP-recommended-treatment-education-the-employer-or-employee (last visited Aug. 16, 2020). But see, 49 CFR § 40.173 (2020) (indicating that an employer must order a split specimen test once an employee requests it, even if that means the employer pays for it and, if the employee was responsible for payment, the employer may seek reimbursement from the employee). [3] Id. [4] See, 49 C.F.R. § 40.173. [5] Id.  [6] Fla. Stat. Ann. § 440.102(5)(m) (2020). [7] Id.    [8] Id.(this may come into play when an employee tests positive on a confirmation test, but wishes to have the sample sent to another laboratory for re-testing to attempt to establish that the result was erroneous).   [9] O.C.G.A. § 34-9-415(d)(10) (2020).  [10] O.C.G.A. § 34-9-415(d)(11). [11] See 13 N.C. Admin. Code 20.0601 (2020). [12] Id. [13] Id.   [14] Drug Testing: The Maryland Guide to Wage Payment and Employment Standards, Md. Dep’t Labor, https://www.dllr.state.md.us/labor/wagepay/wpdrugtest.shtml (last visited Aug. 17, 2020). [15] Md. HEALTH-GENERAL Code Ann. § 17-214(e)(2020). [16] See, e.g., Texas Workforce Commission, “Drug Testing in the Workplace” https://www.twc.texas.gov/news/efte/drug_testing_in_the_workplace.html (last accessed Oct. 3, 2020) (providing that, “[p]re-employment drug testing is something that some employers choose to do for applicants. It is not regarded under the ADA as a medical examination, so it may be done at any point of the selection process, but due to cost issues, most companies restrict such testing to the final candidates for a position. Regarding the issue of who pays for the test, most companies assume that burden. Texas and federal law do not have specific provisions one way or the other, but if requiring an applicant to pay for a pre-employment drug test would have the effect of discouraging minority applicants, or else effectively result in less than minimum wage for the employee’s first paycheck, EEOC and/or the U.S. Department of Labor may have concerns under EEO or minimum wage laws. It would be best to let doubtful cases be reviewed by employment law counsel prior to such testing. Even though drug tests themselves are not covered by the ADA, the results from such tests are considered medical records and should be kept in a separate, confidential medical file just as other types of medical records must be maintained under the ADA”). [17] Id.

Drug testing has become a common part of employment.[1] There are many states that regulate drug testing. Typically, most states’ laws permit employers to test applicants for drugs. However, the employer must comply with the state’s rules on notice and procedures to prevent discrimination and inaccurate samples.[2]

When it comes to testing private company employees, most states restrict testing for drug usage in some way. In some states, companies can’t conduct broad drug testing of all employees or random drug tests—testing must be focused on a specific individual, and there must be sound rationale by the employer to believe that person is using drugs[3] or because his or her position has a high risk of injury or damage if performed by a person taking drugs.[4] Courts have generally held that companies are permitted to test employees after an accident that could have been caused by drug use or one in which employee appeared to be impaired.[5] Very few states, however, put restrictions on an employer’s actions and decisions based on drug test results.[6]

Drug Testing in Specific States

California is somewhat unique in that it’s one of just a few states with a state Constitution that includes a right to privacy.[7] This right of privacy extends to private industry employees.[8] The constitutionality of drug testing is determined on a case-by-case basis.[9] In addition, California also has a “compassionate use” law for medical marijuana.[10] The laws of California do not provide specific drug testing procedures. As a result, courts apply a balancing test to drug tests, and employers have a greater chance of success if they create a lessened expectation of privacy for employees.[11]

In contrast, New York does not have a law concerning drug testing in private employment. As such, drug testing is not prohibited or restricted, provided it does not violate other statutes.[12] And under Texas law, there’s virtually no limitation on the right of private employers to adopt drug testing policies for their workers.[13] Texas employees who contend that their drug test was illegal must bring alternative causes of action.[14]

Florida has a drug-free workplace program that regulates employment drug testing. The Drug-Free Workplace Act[15] provides that employers who create this type of program can qualify for a discount on their workers’ compensation insurance premiums.[16] However, there are specific guidelines that employers must follow to qualify for the discount.

Summary

It’s not unusual for employers to require employees to submit to drug testing before and after being hired. Employers should understand the specific rules for drug testing of applicants and employees in their specific state.

[1] See Stacy Hickox, It’s Time to Rein in Employer Drug Testing, 11 Harv. L. & Pol’y Rev. 419 (Summer 2017) (“Drug testing by employers has become so common that few question its effect on privacy.”). [2] See ACLU, State-by-State Workplace Drug Testing Laws. Retrieved at https://www.aclu.org/other/state-state-workplace-drug-testing-laws. [3] See e.g., Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 617 (1989) (“the process of collecting the sample to be tested . . . implicates privacy interests.”); In re Claim of Ramsey, 17 A.D.3d 949, 949, 793 N.Y.S.2d 632, 633 (N.Y. App. Div. 2005) (employer’s request that employee submit to a drug test was reasonable as employer had a reasonable belief that employee was under the influence of drugs during his shift). [4] ­See Am. Fed’n of Teachers-W. Va. v. Kanawha Cty. Bd. of Educ., 592 F. Supp. 2d. 883, 902-03 (S.D. W. Va. 2009) (quoting Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 628, 109 S. Ct. 1402, 1419 (1989) (“Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.”) [5] See generally, Kenneth M. Willner, Drug and Alcohol Testing in the Workplace, CY016 ALI-ABA 767 (April 1, 2017). [6] Research by SHRM (Society for Human Resource Management) commissioned by the Drug and Alcohol Testing Association (DATIA) in 2011 found that employers most often test current employees based on reasonable suspicion of impairment at work (35%), as a follow up to rehabilitation (20%), and employees indicating a possible substance abuse problem (8%). Drug Testing Efficacy SHRM Poll, SOC’Y FOR HUMAN RES. MGMT. (Sept. 7, 2011) . [7] Cal. Const., Art I, Sec. 1. Retrieved at https://law.justia.com/constitution/california/article-i/section-1/. [8] See California Attorney General website, Privacy Laws (2018). Retrieved at https://oag.ca.gov/privacy/privacy-laws. [9] Smith v. Fresno Irrigation Dist., 72 Cal. App. 4th 147, 166, 84 Cal. Rptr. 2d 775, 788 (1999) (employer’s interest in minimizing the risk of injury to its employees outweighs the plaintiff’s privacy interests). [10] Ross v. RagingWire Telecommunications, Inc. 42 Cal.4th 920, 70 Cal. Rptr. 3d 382, 174 P.3d 200 (Cal. 2008) (employee who used medical marijuana with a physician’s recommendation under the MCRSA and was fired after failing a preemployment drug test could not state a cause of action for termination in violation of public policy). See also Cty. of Butte v. Superior Court, 175 Cal. App. 4th 729, 739, 96 Cal. Rptr. 3d 421, 428 (2009). Legislation effective in 2016, the Medical Cannabis Regulation and Safety Act (MCRSA), permits state residents to use marijuana for medical purposes. The law states that a patient with a valid prescription cannot be prosecuted under state law for crimes relating to the use, possession, or cultivation of a certain amount of marijuana. But the California Supreme Court has held that an employer may not hire an applicant who tests positive for marijuana, even if the drug is legally prescribed for a disability. [11] For example, the adoption of a written company policy providing the circumstances in which drug testing will be required. See Semore v. Pool, 217 Cal. App. 3d 1087, 1096, 266 Cal. Rptr. 280, 285 (1990) (“While an employee sacrifices some privacy rights when he enters the workplace, the employee’s privacy expectations must be balanced against the employer’s interests.”). But see Luck v. S. Pac. Transp. Co., 218 Cal. App. 3d 1, 15, 267 Cal. Rptr. 618, 625-26 (1990) (“…the collection and testing of urine intrudes upon reasonable expectations of privacy. This finding is consistent with that of the United States Supreme Court, which held that both the collection of a urine sample and its testing involve privacy interests and therefore constitute searches within the meaning of the Fourth Amendment.”) (citations omitted). [12] See e.g., Matter of Scazafavo v. Erie Cty. Water Auth., 2006 NY Slip Op 4592, ¶ 1, 30 A.D.3d 1034, 1034, 816 N.Y.S.2d 642, 643 (App. Div.) (termination was not so disproportionate to the offense as to be shocking to one’s sense of fairness where the employee was selected for a random drug test and refused to comply with an order to stay in the vicinity of one of the employer’s vehicles so that he could be transported to the hospital for drug testing). [13] Texas Workforce Commission, Especially for Texas Employers: Drug Testing in the Workplace. Retrieved at https://www.twc.state.tx.us/news/efte/drug_testing_in_the_workplace.html. See Willis v. Pilgrim’s Pride Corp., No. 9:14-CV-71, 2016 U.S. Dist. LEXIS 168951, at *12 (E.D. Tex. Dec. 7, 2016) (Plaintiff admitted that she terminated her employment immediately after refusing to take the mandatory drug test.); Higgins v. Lufkin Indus., No. 9-13-CV-203, 2014 U.S. Dist. LEXIS 187243, at *7 (E.D. Tex. Nov. 18, 2014) (employees who refuse to consent to a drug test are subject to immediate termination). [14] See e.g., Loiacano v. DISA Glob. Sols., Inc., 659 F. App’x 772, 773 (5th Cir. 2016) (negligence action arising from a failed drug test dismissed). [15] Fla. Stat. § 112.0455, et seq. [16] State of Florida, Division of Workers’ Compensation, An Employer’s Guide to a Drug-Free Workplace (Revised April 2005), at 4. Retrieved at https://www.myfloridacfo.com/division/wc/pdf/DFWPman.pdf.

Legal requirements for drug testing in the workplace can be complex and vary depending on several factors, such as state laws, industry regulations, and the specific circumstances under which testing occurs. Here are some general guidelines to consider, but it's essential to consult with an attorney or legal expert familiar with your specific situation to ensure compliance.

1. Federal laws and guidelines: While there is no comprehensive federal law regulating drug testing in private workplaces, certain industries are subject to federal drug testing requirements. For example, the U.S. Department of Transportation (DOT) mandates drug testing for safety-sensitive positions in the transportation industry. Additionally, the Drug-Free Workplace Act requires some federal contractors and grantees to maintain a drug-free workplace and may include drug testing provisions.

2. State laws: Each state has its own laws and regulations regarding drug testing in the workplace. Some states may have more stringent requirements or limitations, while others may have more lenient rules. Be sure to familiarize yourself with the laws in the states where your company operates.

3. Types of testing: Different types of drug testing (e.g., pre-employment, random, post-accident, reasonable suspicion) may be subject to different legal requirements. For example, some states may allow pre-employment drug testing but restrict the use of random drug testing.

4. Employee rights and privacy: Employers must balance the need for drug testing with employees' rights to privacy. The Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures, which can be relevant in drug testing cases. Additionally, the Americans with Disabilities Act (ADA) may impact drug testing policies, as it prohibits discrimination against individuals with disabilities, including recovering drug addicts and alcoholics.

5. Written policy and consent: Employers should have a clear, written drug testing policy that outlines the procedures, types of tests, and consequences of positive test results. Employees should be informed of the policy and may be required to provide consent for drug testing, depending on state laws.

6. Chain of custody and accuracy: Employers must ensure that proper chain of custody procedures are followed during specimen collection and testing to maintain the integrity of the process. Additionally, using certified laboratories and qualified Medical Review Officers (MROs) helps ensure the accuracy and reliability of test results.

Employers conduct drug and alcohol testing to ensure a safe and productive workplace environment because drug and alcohol use can impair an employee's ability to function properly at work, leading to potential accidents, lowered productivity, and other adverse consequences, and in industries such as transportation where safety is paramount, drug and alcohol testing is not only important but mandated by regulatory bodies like the U.S. Department of Transportation (DOT).

DOT-regulated drug and alcohol testing follows a federally standardized set of guidelines for safety-sensitive positions in the transportation sector, which includes roles such as truck drivers, airline pilots, and ship captains, where substance impairment could lead to serious accidents. The testing procedures, substances screened, and the handling of violations are regulated under U.S. Department of Transportation rules.

Non-DOT drug and alcohol testing operates within the boundaries set by state laws and the specific policies of individual companies. This type of testing applies to diverse roles beyond the transportation sector, including professions such as administrative staff in corporate offices, construction workers navigating potential job site hazards, and hotel personnel providing essential customer services. While the testing protocols for Non-DOT roles vary considerably, mirroring the unique safety and operational requirements across different industries and regions, they share a common goal of workplace safety, productivity, and compliance with local regulations.

DOT-regulated employers must follow strict federal guidelines for safety-sensitive roles where impaired functioning could precipitate severe, potentially life-threatening accidents. These roles that employers conduct drug and alcohol testing for include but are not limited to:

• Supervisory Personnel: Supervisors in transportation sectors, such as fleet managers, aviation supervisors, rail operation overseers, transit system coordinators, and maritime officers, bear significant responsibilities. Their roles manage and direct safety-sensitive roles, influencing the safety and productivity of entire teams. Whether it's a supervisor of commercial motor vehicle drivers ensuring regulatory compliance, an aviation supervisor maintaining rigorous safety protocols, or a maritime officer overseeing a ship's operations, their decisions and actions have far-reaching implications. Supervisors who also perform safety-sensitive functions, such as a manager who drives a commercial motor vehicle, are subject to the same DOT testing as the employees they supervise.
• Commercial Motor Vehicle Drivers: This encompasses roles such as interstate truck drivers, school bus drivers, and those responsible for transporting hazardous materials. It also includes individuals who operate vehicles capable of carrying 16 or more passengers. These professionals navigate our roads and highways, their performance directly influencing the safety of numerous lives.
• Aviation Personnel: Airline pilots, flight attendants, and flight instructors play crucial roles in safeguarding air travel. Their positions require sharp skills, strict adherence to protocols, and a high level of responsibility given the potential risks involved in aviation.
• Train Operators and Dispatchers: Similar to aviation, the rail industry carries significant safety responsibilities. Train operators and dispatchers are critical to the smooth and safe operation of rail networks, managing large machines and intricate logistics.
• Transit Vehicle Operators: This category includes drivers of diverse public transportation systems, from city buses and vans to trams and subways. Their role in ensuring the safe transit of millions of passengers daily underscores their importance in urban life.
• Ship Captains and Crew Members: In civilian or commercial maritime positions, the captain and crew are fundamental to safe seafaring operations. Their roles are challenging, demanding a keen understanding of nautical navigation and vessel operation. Mariners are tested under U.S. Coast Guard rules (46 CFR Parts 4 and 16). The Coast Guard is part of the Department of Homeland Security, and its drug testing follows 49 CFR Part 40.
• Pipeline Emergency Response Personnel: These individuals handle high-risk situations associated with the transportation of hazardous materials via pipelines. They must maintain a clear head and prompt response times to avert or manage any crises.
• Maintenance and Armed Security Personnel: Roles involving the upkeep of transportation vehicles or the security of transportation operations are also classified as safety-sensitive. These professionals ensure the reliability of our transportation systems and the security of both the systems and their operators.

Employers must adhere to the legal frameworks of drug testing in the workplace, ensuring proper qualification and implementation to avoid discrimination lawsuits or privacy rights violations. A key part of this is appointing a Designated Employer Representative (DER) responsible for managing the drug and alcohol testing program, liaising with testing laboratories, and ensuring compliance with regulations.

Workplace supervisors should be proficiently trained in "reasonable suspicion" drug testing. This process requires understanding the signs and behaviors indicating potential substance misuse by an employee, and proper training promotes fair identification based on observable facts rather than personal biases, thereby preserving the integrity of the workplace and mitigating legal risks.

Potential lawsuits could arise if a company inconsistently enforces drug testing based on employees' race, age, gender, or disability or fails to accommodate those using legally prescribed medications or dealing with addictions, potentially classified as disabilities. A lack of consistency in reasonable suspicion drug testing procedures may lead to perceived bias, creating legal vulnerabilities, which is why employers must strictly adhere to all relevant federal, state, and local drug testing laws, to maintain a safe workplace, respect employee rights, and mitigate the risk of lawsuits.

Implementing an employer's drug testing strategy should be governed by principles of consistency, fairness, and respect for employees' legal rights, and it is crucial that testing is applied uniformly, devoid of any discriminatory practices that could infringe upon the rights of employees. 

Drug and alcohol testing began to gain prominence in various contexts, including workplaces, sports, and law enforcement, primarily in the latter half of the 20th century. Here's a brief overview of the history:

• Workplace Testing: In the United States, workplace drug testing became more widespread in the 1980s. This was partly in response to safety concerns and partly due to the War on Drugs initiated by the Reagan administration. The Drug-Free Workplace Act of 1988 was a significant milestone, requiring some federal contractors and all federal grantees to agree to provide drug-free workplaces as a precondition for receiving a contract or grant from a federal agency.
• Sports: Drug testing in sports has a slightly earlier history, mainly to prevent performance enhancement through illicit means. The International Olympic Committee (IOC) first introduced drug testing at the 1968 Winter Olympics in Grenoble, France. This was in response to concerns about the use of performance-enhancing drugs that could give athletes an unfair advantage and pose health risks.
• Law Enforcement: In the context of law enforcement, particularly in the United States, drug testing became a tool for monitoring and enforcing drug-related offenses. It has been used in various capacities, such as testing individuals on probation or parole, as well as in investigations of drug-related crimes.
• Alcohol Testing: Alcohol testing, particularly in the context of driving under the influence (DUI), has been around since the early 20th century. The development of the Breathalyzer by Robert Borkenstein in the 1950s represented a significant advancement in law enforcement's ability to test drivers for intoxication.

Qualification training in drug and alcohol testing for both DOT and non-DOT testing is essential to ensure accuracy and reliability in test results, compliance with legal requirements, and the safety of individuals in various environments and provides ethical considerations, such as respecting privacy and maintaining confidentiality, which are vital in upholding the integrity and fairness of the testing process that ensures the rights of those being tested and the interests of entities conducting the tests.