Frequently Asked Questions

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.

Discrimination lawsuits have risen sharply in the last few years, including those involving drug and alcohol abuse and misuse. The EEOC does not track reasonable suspicion claims as a separate category, but it received 88,531 new discrimination charges of all kinds in fiscal year 2024, so a careful, well documented process matters. Employers must train their supervisors to handle reasonable suspicion accusations in a manner consistent with applicable laws. Any reasonable suspicion training provided to supervisors or employees needs to be comprehensive.

Reasonable Suspicion Definition and Application

Defining reasonable suspicion is the first step to training supervisors in reasonable suspicion. There are many definitions available. For discussion purposes, reasonable suspicion is defined as “a belief that the reasonable possibility exists that an employee’s behavior will lead to certain conclusions.” The reasonable suspicion definition should be broken down further for use in reasonable suspicion training by stating: reasonable suspicion is a reasonable belief based on fact, not perception. In contrast, reasonable belief is a reasonable conclusion or opinion based on perceived facts.

If supervisors are aware of reasonable suspicion legal parameters, reasonable suspicion is easier to identify.

Reasonable Suspicion Involving Drug and Alcohol Tests

Supervisors must realize reasonable suspicion drug tests are different from reasonable suspicion alcohol tests. An employer or supervisor cannot simply assume. Under FMCSA and FTA rules, both reasonable suspicion drug tests and reasonable suspicion alcohol tests must be based on specific, contemporaneous, articulable observations made by a trained supervisor or company official (49 CFR 382.307 and 49 CFR 655.43). Other DOT agencies have similar rules. A coworker’s report alone is not enough, although it can prompt a trained supervisor to observe the employee.

Reasonable Suspicion Policy and Procedure

Supervisors need reasonable suspicion guidelines that can be followed if reasonable drug abuse and misuse issues are discussed with an employee. The reasonable suspicion policy should state reasonable belief must have a factual basis. It should explain reasonable suspicion legal parameters with reasonable suspicion drug testing should be included in the reasonable suspicion policy.

Reasonable Suspicion Training for Supervisors

Training supervisors to conduct reasonable suspicion determinations for drug and alcohol testing will allow employees to express concerns about drug use or abuse in the workplace without retaliation. All reasonable suspicion training will include, but not limited to:

• DOT reasonable suspicion testing requirements and DOT drug test results policies, including DOT alcohol testing procedures.
• DOT reasonable suspicion testing guidelines, including DOT alcohol reasonable suspicion testing rules and DOT drug reasonable suspicion training procedures.
• DOT reasonable suspicion testing policies (consequences) and DOT reasonable suspicion alcohol testing procedures (consequences), including DOT reasonable suspicion procedures.

DOT-Regulated Employers Must Provide Mandatory Reasonable Suspicion Training to Supervisors

It is mandatory for employers to train supervisors on reasonable suspicion, including DOT reasonable suspicion testing guidelines. Training is not just about meeting regulations. It is also about:

• Encouraging supervisors to recognize reasonable suspicions while protecting employees' rights lowers the employer’s risk of DOT reasonable suspicion lawsuits.
• If DOT reasonable suspicion training is not conducted or reasonable suspicion protocols are not followed, employers face legal consequences, which is why employers should always incorporate reasonable suspicion training into an existing DOT alcohol testing policy or DOT drug testing program to make it easier for supervisors to make determinations without fear of legal reprisal.
• If DOT-regulated employers conduct comprehensive training on DOT reasonable suspicion requirements and implement a DOT alcohol testing policy that considers employee concerns about being under the influence of drugs or alcohol while at work, they can potentially avoid objective liability by paying attention to what constitutes “reasonable belief,” employers can protect their image with employees. The larger concern is the possible DOT reasonable suspicion lawsuits and penalties if training is not performed.

What about non-DOT Reasonable Suspicion Training?

A non-DOT reasonable suspicion training program for supervisors should also be in place to educate and inform supervisors about reasonable suspicion testing issues that involve alcohol or drug reasonable suspicions for employees who the Department of Transportation does not regulate. If a non-DOT regulated employer or supervisor ignores reasonable suspicion rules, including reasonable suspicion drug and alcohol testing rules, they are rolling the dice with their government and regulatory compliance efforts.

Reasonable Suspicion Training: Supervisors vs. Non-Supervisory Employees

Supervisory employees such as managers, foremen, team leaders, production assistants, and other front-line supervisors need to understand reasonable drug abuse concerns regarding safety-sensitive positions. In many instances, supervisors need reasonable suspicion training to use employee concerns about drug abuse and reasonable suspicions to protect the employees’ rights before they are subjected to a drug test based on non-compliance with reasonable suspicion testing rules.

Can Non-Supervisors Conduct Reasonable Suspicion Testing?

The short answer is no. Reasonable suspicion testing cannot be conducted by just anyone.

As a non-DOT regulated employer, reasonable suspicion alcohol testing should not be done by supervisors who do not meet certain qualifications. To conduct tests under DOT regulations or non-DOT rules. If reasonable suspicion testing is conducted by someone not qualified to do reasonable suspicion testing, the employer faces significant consequences. It’s safer for employers to actually define reasonable suspicion training requirements and reasonable suspicion protocols in an employee handbook or policy manual that is communicated regularly. This helps reduce risk because the rules are clear to all employees when reasonable suspicion drug and alcohol testing may happen, who can make a reasonable suspicion determination, and how it will be administered.

The concept of non-DOT reasonable suspicion should still be included in employer policy manuals. Employers need to address issues such as drug abuse or alcohol use during work hours. Hence, supervisors know reasonable suspicions about drugs while at work includes being under the influence of drugs while performing any operation or activity, not just driving a commercial motor vehicle.

Employee Training for a Drug-Free Workplace

Employee training for a drug-free workplace should be in place for all employees, including non-supervisor roles, and employee handbooks and policies should communicate clear rules about employee use of alcohol and drugs that can affect safety during work hours or while getting ready to go to work. There should also be a process included in an employee handbook for identifying and dealing with work place alcohol or drug abuse issues, and employee training for a drug-free workplace should address guidelines that prohibit employees from reporting to work under the influence of drugs or alcohol, as well as leaving early if they are under the influence of illegal drugs while working.

As a non-DOT regulated employer, it is critical that supervisors are clear about the role of drugs and alcohol in an Employee Training for a Drug-Free Workplace plan.

Non-DOT Rules: Employee Training for a Drug-Free Workplace

There are several reasons why employee training for a drug-free workplace is critical for employers, they are as follows:

• Employee handbooks and policies about Employee Training for a Drug-Free Workplace should address:
• Employee responsibilities related to Employee Training for a Drug-Free Workplace. It’s the employee’s responsibility to follow Employee Training for a Drug-Free Workplace guidelines in order to keep their job.
• Policies prohibiting use of alcohol or illegal drugs, or both, during work hours, on company property, and while getting ready to go to work.
• How an Employee Training for a Drug-Free Workplace policy will be enforced. Most importantly, employees need to know how Employee Training for a Drug-Free Workplace violations will affect them and their jobs if they violate Employee Training for a Drug-Free Workplace rules. Employers that do not have Employee Training for a Drug-Free Workplace policies or Employee Training for a Drug-Free Workplace Employee Handbooks should take steps to create them now.
• Employee training for a drug-free workplace Employee Handbook should address the employer’s expectations related to:
• Employee responsibility rules if alcohol or drugs are found in their system while at work.
• When an employer will consider other Driver Controlled Substance and alcohol testing options, because if one test result is confirmed positive, it’s presumed that evidence exists that the driver committed violations of controlled substances and alcohol prohibitions standards. Hence, an employer would not have to conduct reasonable suspicion drug testing or alcohol testing as proof of reasonable suspicion before taking action against an employee who violates Employee Training for a Drug-Free Workplace rules.

In short, it’s important to train all supervisors and executives, and how to conduct reasonable suspicion determinations in the workplace and also understand the importance of maintaining a drug-free workplace.

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.

When conducting reasonable suspicion drug testing, there are several legal considerations employers must take into account to ensure compliance with federal, state, and local laws, as well as respect employee privacy rights:

• Written policy: Employers should have a clear and comprehensive written policy outlining the organization's drug testing program, including the circumstances under which reasonable suspicion testing may occur. This policy should be readily accessible to all employees.
• Employee consent: In some cases, employers may be required to obtain employee consent before conducting a drug test. This consent should be documented and obtained following applicable laws and regulations.
• Objective criteria: Supervisors must base their reasonable suspicion on objective criteria, such as observable signs and symptoms of impairment. Proper training helps supervisors make informed decisions and reduces the likelihood of discrimination claims.
• Confidentiality: Employers must maintain the confidentiality of drug testing results and any related information, disclosing it only to authorized personnel on a need-to-know basis.
• Testing procedures: Employers should use reliable and accurate drug testing methods, such as those certified by the Substance Abuse and Mental Health Services Administration (SAMHSA), and ensure that proper chain-of-custody procedures are followed.
• Compliance with laws: Employers must stay current with federal, state, and local laws governing drug testing, as regulations can vary widely depending on the jurisdiction. This may include specific requirements for the test types, the substances tested, and the procedures followed.

By adhering to these legal considerations, employers can conduct reasonable suspicion drug testing to protect their organization and employees while ensuring compliance with applicable laws.

Yes, non-DOT drug tests are confidential. As with DOT drug tests, confidentiality is of utmost importance and should be respected throughout the testing process. The confidentiality of drug testing results is not only an ethical requirement but is often protected by law, although specific laws may vary from place to place.

In practice, this means several things:

1. Collection of Sample: When collecting the sample for testing, the process is typically done in a private setting to protect the individual's privacy. However, in some cases, collections may be observed to prevent tampering.

2. Handling and Transportation: The collected samples and all associated paperwork are handled in a manner that maintains confidentiality. This includes secure transportation to the laboratory for testing.

3. Laboratory Testing and Reporting: The laboratory performs testing and reports the results in a way that ensures that personal information is protected. The results are typically reported to a Medical Review Officer (MRO).

4. Medical Review Officer: The MRO reviews the results and typically communicates directly with the individual being tested if there is a positive result. This allows the individual to provide any necessary medical information that could explain the positive result.

5. Reporting Results: When results are reported to the employer or organization that requires the test, this is typically done confidentially. The results should be shared only with individuals who need to know the information for legitimate purposes related to the individual's role in the organization.

6. Record Keeping: Records of drug tests should be kept secure and confidential, with access limited to those who have a legitimate need to know the information.

While all these measures are put in place to maintain confidentiality, it's important to note that there may be situations where drug test results may need to be disclosed, such as in legal proceedings or as required by law. However, in general, the confidentiality of drug testing results should be maintained to respect the individual's privacy and rights.

Drug screening compliance refers to the adherence to specific guidelines, protocols, or regulations in drug testing. This might be relevant in various contexts, including workplaces, medical facilities, or legal stipulations. In a broader context, drug screen compliance refers to the measures taken to ensure that a drug test's process, from collection to analysis, is performed correctly, ensuring reliable and accurate results. These measures can include proper handling and storage of samples, rigorous training for sample collectors, and robust documentation practices. It is important to note that drug screen compliance can vary depending on the jurisdiction, the context (workplace, legal, etc.), and the specific substances being screened for.

Workplace Compliance

For instance, in a workplace setting, compliance might mean that a company conducts drug screens in line with laws and regulations that govern these tests, ensuring they are administered fairly, consistently, and lawfully.

Example: Suppose a construction company has a policy that mandates random drug testing for its employees to ensure a safe and productive work environment. In this case, drug screen compliance would mean that the company conducts these drug tests in alignment with local, state, and federal laws.

This might involve ensuring that the tests are truly random and not targeting specific individuals unfairly, giving employees proper notice, protecting the privacy of employees' medical information, and so on. The company may also need to comply with specific procedures when handling positive test results, such as offering Employee Assistance Programs (EAPs) rather than immediately terminating the employee. If a worker tests positive for a substance they are legally prescribed and use for a disability, the company might need to make reasonable accommodations in line with laws like the Americans with Disabilities Act (ADA).

Individual Compliance

For individuals, it could refer to their obligation to participate in regular drug screening as part of their employment contract or as a parole or probation agreement requirement. Compliance in this context would mean that the individual follows the rules by taking the required tests and not attempting to tamper with or evade them.

Example: Let's say an individual is on probation for a drug-related offense. They might be required to participate in regular drug screenings as part of their probation. In this case, compliance would mean the individual must show up for all scheduled tests, provide the necessary samples in the prescribed manner, and avoid consuming illicit substances to pass the tests. Failure to comply could result in legal repercussions, including possible probation revocation.

Compliance with Drug Screen Procedures

In a medical or laboratory setting, compliance would mean following a rigid set of procedures to ensure the accuracy and reliability of drug screen results. This could involve appropriately training staff who collect the samples, ensuring that the samples are correctly labeled and stored, performing the tests promptly, and cross-verifying the results.

Example: If an initial urine drug screen returns positive for a substance, the lab might need to follow compliance procedures by confirming the result with a more specific test, such as gas chromatography-mass spectrometry (GC-MS) or high-performance liquid chromatography (HPLC). This helps to rule out false positives and provides a more reliable result.

A Designated Employer Representative (DER) plays a crucial role in maintaining compliance with drug and alcohol testing procedures within a workplace. According to the U.S. Department of Transportation (DOT), a DER is an employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties and to make necessary decisions in the testing and evaluation processes.

DERs and their role in maintaining compliance:

1. Policy Development and Communication: A DER may be responsible for developing a company's drug and alcohol testing policies in line with federal, state, and local regulations. They are also responsible for clearly communicating these policies to all employees to ensure they understand their obligations.

2. Coordination of Testing: The DER coordinates the testing process, which includes scheduling tests, ensuring proper collection procedures, and handling test results. This also includes pre-employment testing, random testing, reasonable suspicion testing, post-accident testing, return-to-duty testing, and follow-up testing.

3. Action on Test Results: A critical part of a DER's job is deciding what actions to take based on test results. If an employee tests positive for drugs or alcohol, the DER will typically remove that employee from performing safety-sensitive functions. They must also initiate the process for the employee's return to duty if the employee completes a Substance Abuse Professional's (SAP) recommended treatment or education program.

4. Record Keeping: A DER must maintain accurate records of all drug and alcohol tests conducted, including documentation of test results, violations, and actions taken in response. These records are important for audits and potential legal inquiries.

5. Training and Education: A DER often oversees training and education initiatives to inform employees about the dangers of drug and alcohol misuse, the company's testing program details, and the resources available to those struggling with substance abuse.

A Designated Employer Representative (DER) is pivotal in upholding compliance with drug and alcohol testing protocols within a professional environment. The U.S. Department of Transportation (DOT) defines a DER as an employee entrusted by the organization to enact measures swiftly, remove personnel from safety-sensitive responsibilities, and make crucial decisions within the testing and evaluation spheres.

DERs tasks not only confirm an organization's adherence to drug and alcohol testing regulations but also lay the groundwork for a secure and high-performing work environment and ensure drug screen compliance through understanding and application of legal regulations, individual duties, and procedure-specific guidelines that differ based on varying contexts, and contributes to promoting a culture of integrity and safety, driving the company towards sustained success and setting a high standard of compliance in the industry.

Compliance training is an essential part of any organization's operational strategy. It refers to the process of educating employees on the laws, regulations, and company policies that pertain to their daily job roles. By undertaking compliance training, organizations strive to mitigate the risk of misconduct, which could potentially lead to severe legal repercussions for the company as well as for individual employees.

One of the primary purposes of compliance training is to ensure that organizations and their staff members remain compliant with relevant laws and regulations. This is of the utmost importance as failure to comply with these rules can result in legal penalties, financial losses, and damage to the company's reputation.

Compliance training programs can cover a multitude of topics, varying by the industry and nature of work. Some of the key topics that are commonly covered in compliance training include:

1. Workplace Safety: This topic involves regulations from bodies like the Occupational Safety and Health Administration (OSHA) or equivalent entities across different countries. It covers training on appropriate handling of equipment, protocols for dealing with hazardous materials, and other safety measures required in the workplace. By adhering to these guidelines, organizations aim to ensure a safe working environment for their employees.

2. Harassment and Discrimination: Organizations commonly provide training on identifying and preventing unlawful harassment and discrimination in the workplace. This includes education on what constitutes such behavior, how to respond if one witnesses or experiences it, and the procedures for reporting such incidents. Such training is crucial for maintaining a respectful and inclusive workplace culture.

3. Data Protection and Privacy: For companies dealing with personal data, this aspect of compliance training is essential. It includes training on laws like the General Data Protection Regulation (GDPR) in the European Union or the California Consumer Privacy Act (CCPA) in the United States. These regulations dictate how organizations should handle, store, and protect personal data, and non-compliance can lead to hefty fines and other sanctions.

4. Anti-Corruption and Bribery: Particularly for companies operating globally, complying with laws like the U.S. Foreign Corrupt Practices Act (FCPA) or the UK Bribery Act is critical. Training in this area involves teaching employees about what constitutes corruption and bribery, how to avoid participating in such activities, and how to report suspected instances of corruption.

5. Drug Screening Compliance: In industries where drug screenings are required, such as transportation, compliance training can involve informing employees about the importance of these screenings, the procedures involved, their rights and responsibilities, and the repercussions of non-compliance. This helps promote a drug-free workplace and ensure the safety of all stakeholders.

6. HIPAA Compliance: For organizations dealing with protected health information (PHI), such as hospitals, insurance companies, and other health-related organizations, compliance with the Health Insurance Portability and Accountability Act (HIPAA) is crucial. HIPAA compliance training involves educating employees about safeguarding PHI, proper procedures for handling and disclosing PHI, and the severe consequences of non-compliance.

7. Industry-Specific Regulations: Each industry has its own set of regulatory requirements and standards. For instance, in healthcare or finance, there are specific laws and regulations that employees must understand and comply with. Hence, appropriate compliance training must be provided to ensure that employees are fully informed and equipped to meet these regulations.

Compliance training can be delivered through various methods, such as in-person workshops, online courses, or blended learning programs. The effectiveness of such training is often assessed through tests and evaluations to ensure employees understand and can apply their knowledge in their roles. Importantly, compliance training should be an ongoing process, considering the frequently changing nature of regulations and company policies. By continually updating their knowledge, employees can stay informed about the latest developments and ensure their actions remain within the bounds of the law and company policy.

In conclusion, compliance training is an indispensable part of modern organizations. It not only serves to protect the company and employees legally but also fosters a culture of ethics, respect, and safety in the workplace.

Often referred to as sexual harassment training, it educates learners on what constitutes inappropriate behavior in the workplace, including sexual harassment, bullying, and discrimination. The training covers legal definitions, real-world examples, company policies, reporting procedures, and strategies for preventing and addressing such issues.

Workplace harassment training is essential for all employees across industries, including managers, supervisors, and business owners. HR professionals typically facilitate or organize this training to ensure compliance with legal regulations and company policies. It is usually required during onboarding and repeated annually to maintain compliance and reinforce employee awareness.

Workplace harassment training can be delivered in various formats, such as in-person workshops, virtual webinars, or online learning platforms (LMS), ensuring that employees receive consistent education regardless of location.

States Requiring Specific Harassment Training

• California: Employers with five or more employees must provide workplace harassment training under AB 1825 (two hours every two years for supervisors) and SB 1343 (one hour every two years for non-supervisory employees).
• New York: All employers must provide annual training with specific components outlined by the New York State Human Rights Law.
• Connecticut: Under the Time’s Up Act, employers with three or more employees must provide two hours of training for supervisors, and mandatory training for all employees is provided every ten years.
• Delaware: Employers with 50 or more employees must provide training to all employees and supervisors under Delaware’s sexual harassment law.
• Maine: All employers must train employees and supervisors, with additional requirements for those with 15 or more employees.
• Illinois: Under the Illinois Workplace Transparency Act, all employers must provide annual sexual harassment prevention training to employees and supervisors.
• Washington: Specific industries, such as hospitality and retail, have distinct state requirements for harassment training.
• Oregon: Employers with one or more employees must provide training under Oregon Senate Bill 726.

Why Workplace Harassment Training Matters

Workplace harassment training creates a safe, respectful, and inclusive environment by helping employees recognize and prevent harassment, bullying, and discrimination. It also ensures employers meet legal obligations, particularly in states like California and New York, where non-compliance can lead to fines or lawsuits.

An effective training program must address current legal standards and provide practical, actionable guidance. It should clarify employee responsibilities, equip them to handle difficult situations and minimize legal risks. By reducing the likelihood of harassment, quality training protects the organization, lowers legal exposure, and fosters a respectful workplace culture.

How the EEOC defines sexual harassment

The EEOC treats harassment based on a protected characteristic as a form of employment discrimination. Its guidelines on sexual harassment describe unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature as harassment when submission is made a term or condition of employment, when submission or rejection is used as the basis for employment decisions, or when the conduct has the purpose or effect of unreasonably interfering with work performance or creating an intimidating, hostile, or offensive working environment (29 CFR 1604.11(a)). The EEOC rescinded its 2024 Enforcement Guidance on Harassment in the Workplace by a vote on January 22, 2026.

The EEOC's guidelines on sexual harassment, published at 29 CFR 1604.11, state that harassment on the basis of sex violates section 703 of Title VII of the Civil Rights Act of 1964. Under the guidelines, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

1. Submission to the conduct is made either explicitly or implicitly a term or condition of an individual's employment. 2. Submission to or rejection of the conduct is used as the basis for employment decisions affecting the individual. 3. The conduct has the purpose or effect of unreasonably interfering with work performance or creating an "intimidating, hostile, or offensive working environment" (29 CFR 1604.11(a)).

The EEOC's sexual harassment page adds that harassment does not have to be of a sexual nature and can include offensive remarks about a person's sex. The victim and the harasser can be a woman or a man, and they can be the same sex. The law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment, or when it results in an adverse employment decision, such as the victim being fired or demoted. The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or a non-employee such as a client or customer.

The EEOC looks at the record as a whole and the totality of the circumstances, and it decides legality case by case (29 CFR 1604.11(b)). For conduct between fellow employees, an employer is responsible where it or its agents or supervisory employees knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. A similar standard can apply to conduct by non-employees (29 CFR 1604.11(d) and (e)).

The guidelines also describe prevention steps, such as raising the subject, expressing strong disapproval, developing sanctions, and informing employees how to raise harassment concerns under Title VII (29 CFR 1604.11(f)). These topics are common in workplace harassment training and broader compliance training. Title VII generally applies to employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year (42 U.S.C. 2000e(b)). On January 22, 2026, the EEOC voted to rescind its 2024 Enforcement Guidance on Harassment in the Workplace. The 1604.11 guidelines remain in the eCFR.