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Drug and Alcohol Testing- Does your state regulate drug and alcohol testing?State Applicant

testing Employee testing Conditions/methods

Coveredemployers

State drug-freeworkplace program

US There is no comprehensive federal law that regulates drug testing in the private sector. The Drug-Free Workplace Act does impose certain employee education requirements on companies that dobusiness with the government, but it does not require testing, nor does it restrict testing in any way. Drug testing is allowed under the Americans with Disabilities Act (ADA) because the ADA does notconsider drug abuse a disability—but the law does not regulate or prohibit testing. Instead of a comprehensive regulatory system, federal law provides for specific agencies to adopt drug testingregulations for employers under their jurisdiction.

The Department of Defense requires defense contractors to set up procedures for identifying drug users, including random testing. The Department of Transportation requires the industries it regulatesto conduct random drug and alcohol testing for workers in safety sensitive jobs, as well as testing after accidents and when there is “reasonable suspicion” of employee substance abuse. The federalOmnibus Transportation Employee Testing Act (OTETA) requires tests for all operators of aircraft, railroad equipment, mass transportation vehicles, and commercial motor vehicles.

Since there is no comprehensive federal drug-testing law, this leaves the field open to state regulation, and many states have enacted provisions imposing drug-testing restrictions of various kinds.AL To qualify for the

workers'compensationdiscount, notice ofany required testingmust be included oneach job vacancyannouncement.Testing is authorizedafter the applicant isgiven notice of thedrug-testing policyand a conditionaloffer ofemployment.Citation: Ala. Code §25-5-330 et seq.

Testing is authorized, including random testing and testing on reasonable suspicion, as part of a fitness-for-duty exam, after an on-the-job injury, or as a follow-up to a rehabilitation program. Employees mustreceive 60 days' advance notice of the testing policy, which must be conspicuously posted. An employeemay be partially disqualified from receiving unemployment benefits if he or she is discharged for workmisconduct, including use of illegal drugs or failing to cooperate with a drug test after a previous warninghas been given.Citation: Ala. Code § 25-5-330 et seq.

The employer'stesting policymust be posted ina conspicuouslocation on theemployer'spremises. Aconfirming test isrequired in casesof positive testresults.Opportunity tocontest or explainpositive testresults must begiven within fivedays of receivingresults.

All employerssubject to stateworkers'compensationlaw who desireto takeadvantage ofthe premiumdiscount.

Incentives: Employersimplementing a drug-freeworkplace program can qualiffor a five percent premiumdiscount on workers'compensation insurancepolicies.Requirements: Employers mustsubmit an application to theDepartment of IndustrialRelations for certification thatthey are in compliance with theprovisions of the statute.Covered employers: Allemployers subject to the stateworkers' compensation law butnot individual self-insurers ormembers of group self-insurancefunds.Citation: Ala. Code §§ 25-5-330through 25-5-340.

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Page 1 of 71 © BLR-Business & Legal Resources These charts provide an overview of state laws and are meant for internal use only.



Coveredemployers


AK An employer mayrequire an applicantto submit to a urineor breath test forany job-relatedpurpose consistentwith businessnecessity and theterms of theemployer's policy.Employers candecline to hireapplicants whorefuse to submit todrug-testing or whotest positive. Publicemployers may onlyconductpreemploymentdrug testing forsafety-sensitivepositions thatinvolve work posinga great danger tothe public.Citation: AS23.10.600 et seq.,14.09.025, and17.37 et seq.

Testing, including random testing and reasonable suspicion, is authorized for job-related purposes,consistent with business necessity. Thirty days' notice and a written policy statement must be given toemployees. Testing time is work time for purposes of compensation and benefits. Discipline or discharge ispermissible for positive test results or refusal to submit to test. School bus drivers are subject to randomtesting and discipline under separate provisions.Citation: AS 23.10.600 et seq., 14.09.025, and 17.37 et seq.

Confidentiality oftest results isrequired. Theemployer maydesignate thetype of samplerequired fortesting. Theemployer mustpay the entireactual cost fortesting andreasonabletransportationcosts to anemployee iflocation is otherthan work site.On-site testing ispermitted if testsare administeredby certified testadministrator andtest approved byFDA. Confirmingtest is required incase of positiveresult.Opportunity toobtain resultsmust be givenwithin five daysand opportunityto explainpositive resultmust be givenwithin 10 days.The use,possession, andcultivation ofmedicalmarijuana isallowed bypatients whoenroll in the statepatient registryand possess a

All employerswith employeesunder acontract of hire,express orimplied, oral orwritten.

Incentives: Employers aregranted limited immunity fromliability for drug testing as longas the testing is done incompliance with the law and theemployer acts in good faith.Requirements: Employers mustestablish and implement atesting program, and anyactions taken as a result of apositive test must be made ingood faith.Covered employers: Allemployers.Citation: AS 23.10.600-.699.





Coveredemployers


valididentificationcard. Patients (ortheir primarycaregivers) maylegally possessno more than oneounce of usablemarijuana. Thelaw does notaddress drug useor testing in anemploymentsetting.





Coveredemployers


AZ Testing is authorizedif the applicant isinformed in writingbeforehand. Theapplicant’s refusal tosubmit to a drugtest may be used asbasis for not hiring.Testing is required tocertify school busdrivers.

Citation: A.R.S. §§15-513, 23-493 etseq.

Arizona law does not prohibit workplace drug or alcohol testing. However, state law offers certain legalincentives to employers that, if they choose to conduct workplace testing, comply with certain statutoryprocedures and protocols when doing so. Those incentives include certain legal protection from claims thatmight arise from the testing process. The law also expressly permits employers who comply with thoseprotocols to impose a variety of disciplinary measures in the event of a positive test or a refusal to test.The best practice for employers who wish to conduct workplace testing is to follow the procedures andprotocols laid out in the state law. If the employer complies with those protocols, the employer may test forany job-related purpose consistent with business necessity, including: (a) the investigation of possibleindividual employee impairment; (b) the investigation of accidents in the workplace; (c) maintaining safety,productivity, quality, or security; (d) upon reasonable suspicion that an employee may be affected by theuse of drugs or alcohol and that the use may adversely affect the job performance or the workenvironment; and (e) random or chance testing. The employer also may impose discipline or othercorrective action at its discretion for a positive test or a refusal to test, including rehabilitation, treatment,or counseling, suspension, termination of employment, or “other adverse employment action.” Schooldistrict transportation employees must submit to testing in the event of an accident or if based on probablecause.

Citation: A.R.S. §§ 23-493; school district transportation employees: A.R.S. §§ 15-513, 28-3228.

Arizona law offerscertain legalincentives toemployers that, ifthey choose toconductworkplacetesting, complywith certainstatutoryprocedures andprotocols whendoing so. Thoseinclude: (a)testing onlypursuant to awritten policythat containscertainprescribedminimum contentand that hasbeen distributedor otherwisemade available toall employees; (b)the collection ofsamples onlyunder reasonableand sanitaryconditions; (c)chemical analysisof samples incompliance withscientificallyacceptedanalyticalmethods andprocedures,including the useof a licensed orcertifiedlaboratory andconfirmatorytesting of anypositive testresults; (d) theemployer’s

All employers. The State Personnel System is asubstance-free workplace,pursuant to the employeehandbook applicable to all stateemployees. State employees arprohibited from the unlawfulmanufacture, distribution,dispensing, possession, and/oruse of unauthorized controlledsubstances on state premises orworksites, including statevehicles. State employees maynot be impaired by alcohol ordrugs while on duty. Drug andalcohol testing programs areestablished at the agency levelspecific to its mission.





Coveredemployers


payment of allcosts associatedwith employeetesting, includingany costsassociated withtransportation tothe collectionsite; and (e) theemployer’scompliance withcertainconfidentialityobligations.Under the ArizonaMedical MarijuanaAct, employersmay notdiscriminateagainst patientsregistered for thelegal use ofmedicalmarijuana unlessthe employerwould lose moneyor licensing underfederal law.

Employers alsomay not penalizeregisteredpatients solely fortesting positivefor marijuana indrug tests. Thelaw does notauthorizepatients to use,possess, or beimpaired bymarijuana on theemploymentpremises orduring the hoursof employment.Therefore,employers should





Coveredemployers


document signsof impairmentwhen there is areasonablesuspicion ofimpairment, asemployers cannotact based solelyon a failed drugtest that detectsmarijuana in acardholder atlevels insufficientto causeimpairment.

Citation: A.R.S. §§23-493.03,23-493.04,36-2813.





Coveredemployers


AR Testing is authorizedafter the applicant isgiven notice of drugand alcohol testingpolicy and aconditional offer ofemployment ismade. Job ads mustinclude notice ofdrug testing.Positive results orrefusal to submit totesting may begrounds for nothiring. The drug testmust be provided atno cost to theemployee orapplicant foremployment. If anemployee testspositive for an illegaldrug, the employerand employee mayagree in writing whowill bear the cost offuture drug tests orscreens required asa condition ofcontinuedemployment. If thecost of the test iswithheld from theemployee's pay orotherwisereimbursed to theemployer by theemployee, theemployer must keeprecords of the actualcost of the test andthe relatedwithholding orreimbursement andprovide these to theDOL upon request.Citation: Ark. Code

An employer that voluntarily establishes a drug-free workplace must conduct certain drug and alcoholtests. Reasonable suspicion testing: the employer must make a written record of the observations that ledto the reasonable suspicion test, and such records must be made available to the employee. Routinefitness-for-duty test: if it is part of the employer's policy, the employee shall take a drug test as part of aroutine fitness-for-duty medical examination for all members of an employment classification or group.Follow-up drug testing: employers should conduct a drug test as a follow-up to a rehabilitation program.Post-accident drug test: given after an on-the-job injury. Written notice of testing must be given and mustalso be conspicuously posted.The drug test must be provided at no cost to the employee.Citation: Ark. Code Ann.§ 11-14-101 et seq.

Confidentiality oftest results isrequired.Confirming testmust be providedin case of positiveresult. Subjectmust have theopportunity tocontest or explaina positive resultwithin five daysof receiving testresults.Employerssubject to testingfor motor carriersare required toreport positivetest results to thestate Office ofDriver Service(ODS) and tosubmit a requestfor informationfrom the testingdatabase for eachemployee to betested. "Illegaldrugs" aredefined as anycontrolledsubstance that isunlawful for aparticularemployee orapplicant topossess or use,includingprescriptionmedication forwhich anemployee orapplicant doesnot have acurrent or validprescription.

All employerssubject to stateworkers'compensationlaw.

Incentives: Employersimplementing a drug-freeworkplace program qualify forworkers' compensationdiscounts.Requirements: At least 60 daysbefore the policy's effectivedate, employers must postnotice that the policy is beingimplemented. Also, employersare required to conduct thefollowing: (1) testing of jobapplicants, (2) reasonable-suspicion drug/alcohol testing,(3) routine fitness-for-duty drugtesting for certain employees(police and employees with druginterdiction responsibilities), (4)testing for employees who arauthorized to carry firearms,etc., (5) follow-up drug testingfor employees who receiverehab involuntarily, and (6) post-accident testing. The lawdoesn't stop employers fromlawful testing in addition to theminimum testing required.Records associated with drugtests are confidential.Covered employers: Employerscovered by the workers'compensation law who maintaina drug-free workplace and posta statement that the policy isbeing implemented.Citation: Ark. Code Ann. §§11-14-101 through 11-14-112.





Coveredemployers


Ann.§ 11-14-101 et seq.

Marijuana isincluded. Alcoholis considered"illegal" if, at thetime of the test,the employer hada written policythat prohibitedalcohol use in thecircumstances atissue, theemployerestablished analcohol-testingprocedure, andthe policyestablished aconcentration ofalcohol thatwould beconsidered a"positive" test.





Coveredemployers


CA The constitutionalityof drug/alcohol testsis determined on acase by case basis.The primary focus ofa stateconstitutionalprivacy claim in theemployee drug/alcohol testingcontext is areasonablebalancing test thatbalances the drug/alcohol test'sintrusion on thereasonableexpectations of theapplicant againstthe test's promotionof the employer'slegitimate interests.Requiring applicantsfor city jobs to passa drug test has beenheldunconstitutional asan unreasonablesearch. On the otherhand, drug/alcoholtesting of applicantsby privateemployers may bevalid as part of apre-placementmedical examinationapplied to all newjob applicants. Therequirements for"medical exams"under the CaliforniaFair Employmentand Housing Actmust be satisfied.Any drug/alcoholtest must be jobrelated and

Drug/alcohol tests of an existing employee without any individualized suspicion is generally considered anunreasonable search, unless the employee is in a highly safety or security sensitive position or covered byfederal laws requiring random drug testing. Testing authorized of state employees in positions of"sensitivity." Employees who test positive may be referred for treatment or may be suspended or removedfrom job. Postaccident testing allowed where employer has reasonable suspicion that employee in accidentwas under the influence. Private sector and public employers of 25 or more must "reasonablyaccommodate" employees who want to enter drug treatment programs. Some local ordinances, like theSan Francisco Police Code § 3300A.5, may also restrict drug/alcohol testing.Citation: State Pers. Bd Rules Tit. 2 § 213; Lab. Code § 1025 et seq.; San Francisco, Mun. Code Part II Ch. 7Art. 3300A.1; Cal. Bus. & Prof. Code § 1206; Ross v. Raging Wire Telecommunications, No. 138130, (Calif. S.Ct. 2008); Loder v. City of Glendale, 14 Cal. 4th 846 (1997); Lanier v. City of Woodburn, 518 F.3d 1137 (9thCir. 2008); Cal. Gov't Code§ 12940(e).

In state agencies,advancenotification to theemployee orapplicant,documentationshowing chain ofcustody of thetest specimen,and confirmingtest in case ofpositive findingsare required. TheCaliforniaDepartment ofHealth interpretsthe state'slaboratorylicensing law toprohibit any drugtest notperformed in acertifiedlaboratory or by alicensedphysician. SanFrancisco has itsown alcohol anddrug-testingstatute thatprovidesguidelines fortesting in theworkplace.California lawdoes not requireemployers toaccommodatethe use ofmedicalmarijuana, whichis otherwisepermitted underCalifornia'sCompassionateUse Act.

Private andpublicemployers.

Incentives: The ability to beawarded contracts or grantsfrom state agencies.Requirements: Every employerawarded a contract or grantfrom a state agency must certifthat it will (1) provide a drug-free workplace by notifyingemployees in writing that using,manufacturing, distributing, orpossessing drugs in theworkplace is prohibited andsubject to punitive measuresand (2) set up a drug-freeawareness program to informemployees about the dangers ofand the penalties for drug useand availability of drugcounseling; and require thateach employee engaged in theperformance of the contract orgrant agree to the terms of thedrug-free workplace policy.Covered employers: Employersawarded state contracts orgrants.Citation: Cal. Gov't. Code §8355.





Coveredemployers


consistent withbusiness necessity.A drug/alcohol testmay only be givento an applicant aftera real job offer hasbeen made (i.e., theemployer hasevaluated all non-medical matters,such as, backgroundchecks andreference checks)and before thecommencement ofjob duties, and itmust be required ofall applicants in thesame jobclassification.Testing authorized ofapplicants to stateagency positions of"sensitivity" iftesting is jobrelated. Publicemployers may onlyconductpreemploymentdrug testing forsafety-sensitivepositions thatinvolve work posinga great danger tothe public. Privateemployers canrequire an applicant,as a condition ofhiring, tosuccessfully pass apreemploymentexamination thatincludes a drugscreening.Citation: State Pers.Bd Rules Tit. 2 §213; Lab. Code §





Coveredemployers


1025 et seq.; SanFrancisco, Mun.Code Part II Ch. 7Art. 3300A.1; Cal.Bus. & Prof. Code §1206; Ross v. RagingWireTelecommunications,No. 138130, (Calif.S. Ct. 2008); Loderv. City of Glendale,14 Cal. 4th 846(1997); Lanier v. Cityof Woodburn, 518F.3d 1137 (9th Cir.2008); Cal. Gov'tCode§ 12940(e).





Coveredemployers


CO Amendments to theColoradoConstitutionlegalized the use ofmarijuana formedical andrecreationalpurposes. Coloradomarijuanaregulations do notrestrict anemployer’s ability toconductemployment-relateddrug tests. Inaddition,terminating anemployee for testingpositive formarijuana when theemployee usedmarijuana pursuantto a medicalmarijuana licensedoes not violateColorado’s lawfulactivities statute orconstitute disabilitydiscrimination underColorado’s anti-discriminationstatute. Coats v.Dish Network, LLC,2015 CO 44; Curry v.MillerCoors, Inc., No.12-cv-02471(D.Colo. Aug. 21,2013).

Private sector: Nostate law specificallygoverns drug/alcohol testing byprivate employers,but Mares v.Conagra Poultry Co.held that no statelaw supports an

Amendments to the Colorado Constitution legalized the use of marijuana for medical and recreationalpurposes. Colorado marijuana regulations do not restrict an employer’s ability to conduct employment-related drug tests. In addition, terminating an employee for testing positive for marijuana when theemployee used marijuana pursuant to a medical marijuana license does not violate Colorado’s lawfulactivities statute or constitute disability discrimination under Colorado’s anti-discrimination statute. Coatsv. Dish Network, LLC, 2015 CO 44; Curry v. MillerCoors, Inc., No. 12-cv-02471 (D.Colo. Aug. 21, 2013).

Private sector: No state law specifically governs drug/alcohol testing by private employers, but Mares v.Conagra Poultry Co. held that no state law supports an exception to the employment-at-will doctrine basedon an employer’s request for medical information pursuant to a drug-testing policy.

Public sector: The Tenth Circuit has held that drug testing of government employees requires either“special needs” or “reasonable suspicion.” In Benavidez v. Albuquerque, the court stated that “specialneeds” drug testing is permitted when the employee is in a safety-sensitive position and the test ispursuant to a random or uniform selection process. In such situations, probable cause or reasonablesuspicion that an employee might be impaired isn’t required. But City and County of Denver v. Casadosheld that requiring testing of public employees who didn’t hold public safety or security-sensitive positionswasn’t facially invalid.

Boulder: The City of Boulder has its own ordinance related to drug and alcohol testing. The employer mustnotify applicants that a drug and alcohol test is part of the employment screening process or pre-employment physical. Drug and alcohol testing is limited to the single finalist for the position, if a Coloradoresident, or to out-of-state resident finalists who come to Colorado to interview.

Citation: Private sector: Mares v. Conagra Poultry Co., 971 F.2d 492, 496 (10th Cir. 1992). Public sector:Benavidez v. Albuquerque, 101 F.3d 620, 624 (10th Cir. 1996) and City and County of Denver v. Casados,862 P.2d 908 (Colo. 1993). Boulder: Boulder Rev. Code § 12-3-1 to 5.

Medicalmarijuana: Theuse of marijuanato alleviatecertaindebilitatingmedicalconditions isauthorized;however, theemployer is notrequired toaccommodatethe medical useof marijuana inany workplace.State lawprohibitsregistered usersfrom undertakingany task whileunder theinfluence ofmedicalmarijuana whendoing so wouldconstitutenegligence orprofessionalmalpractice.

Recreationalmarijuana: Thepossession anduse of smallamounts ofmarijuana byadults age 21 orolder is legal inColorado.Employers mayprohibit the useand possession ofmarijuana in theworkplace and ontheir property,may prohibitemployees from

Boulder:Boulder’s cityordinanceapplies totesting ofindividualsassigned to animmediatesupervisorlocated in thecity of Boulder,or working atleast one-thirdtime on a job inthe city formore than threemonths.Federal, state,and localgovernmentemployees areexempt.

No program.





Coveredemployers


exception to theemployment-at-willdoctrine based onan employer’srequest for medicalinformationpursuant to a drug-testing policy.

Public sector: TheTenth Circuit hasheld that drugtesting ofgovernmentemployees requireseither “specialneeds” or“reasonablesuspicion.” InBenavidez v.Albuquerque, thecourt stated that“special needs” drugtesting is permittedwhen the employeeis in a safety-sensitive positionand the test ispursuant to arandom or uniformselection process. Insuch situations,probable cause orreasonable suspicionthat an employeemight be impairedisn’t required. ButCity and County ofDenver v. Casadosheld that requiringtesting of publicemployees whodidn’t hold publicsafety or security-sensitive positionswasn’t faciallyinvalid.

being under theinfluence, andmay have policiesrestricting theuse of marijuanaby employees.

Boulder: Testingis permittedunderindividualizedreasonablesuspicion basedon specific,objective, clearlyexpressed factsdemonstratingthat theemployee isunder theinfluence of drugson the job or thatthe employee’sjob performanceis adverselyaffected. Forrehabilitation,testing ispermitted only ifthe employeeagreed to the testas part of an EAPafter a finding ofor an admissionof prior drug use.Random testing isprohibited.

Citation: Medicalmarijuana: Colo.Const. amend.20. Recreationalmarijuana: Colo.Const. amend.64. Boulder:Boulder Rev.Code § 12-3-1 to5.





Coveredemployers


Boulder: The Cityof Boulder has itsown ordinancerelated to drug andalcohol testing. Theemployer mustnotify applicantsthat a drug andalcohol test is partof the employmentscreening process orpre-employmentphysical. Drug andalcohol testing islimited to the singlefinalist for theposition, if aColorado resident,or to out-of-stateresident finalistswho come toColorado tointerview.

Citation: Privatesector: Mares v.Conagra Poultry Co.,971 F.2d 492, 496(10th Cir. 1992).Public sector:Benavidez v.Albuquerque, 101F.3d 620, 624 (10thCir. 1996) and Cityand County ofDenver v. Casados,862 P.2d 908 (Colo.1993).Boulder: BoulderRev. Code § 12-3-1to 5.





Coveredemployers


CT Testing is authorizedif the applicant isinformed in writingbeforehand. Formeremployees may notbe tested unlessthey have beenaway from the jobfor at least 12months. Testing isrequired to certifyschool bus drivers.No urinalysis drugtest is permittedunless the applicantis first notified inwriting of the test,the test followsspecific procedures,and the applicant isgiven results ofpositive test results.Test results areconfidential andmay not bedisclosed to anyperson other thanthe applicant.Citation: Conn. Gen.Stat. § 31-51tet seq., § 14-261a etseq., § 14-276a.

Testing is authorized on the reasonable suspicion that the employee is under the influence of drugs oralcohol, which adversely affects or could adversely affect such employee's job performance. Employeesmust be notified in writing of the employer's intent to test and must be given a copy of any positive drugtest result. Results must be kept confidential.Without reasonable suspicion, employees may only be subjected to random testing if the position isdesignated as high risk or safety-sensitive or if federal law requires testing. Testing is permitted forvoluntary EAPs.Citation: Conn. Gen. Stat. § 31-51t et seq., § 14-261a et seq., § 14-276a.

A confirming testis required incase of positivefindings.Employee privacyin collection ofspecimen andconfidentiality oftest results mustbe preserved.Testing isrequired forintrastate truckdrivers after areportableaccident, uponreasonable cause,or at randomunder federal law.Discipline ordischarge isauthorized foremployees with aconfirmedpositive testresult. To apply tohave a particularjob defined ashigh-risk orsafety-sensitive,an employermust send awritten request tothe LaborDepartment withevidencesupporting theapplication.

All privateemployers,entities thatemploycommercialdrivers, entitiesthat furnishtransportationservices toschools.

No program.





Coveredemployers


DE Testing is required tocertify applicants forschool bus drivers,as well as positionsin nursing homefacilities and homehealth agencies.Testing is alsorequired forsecurity-sensitivepositions with theDepartment ofCorrections. Allpublic workscontracts mustinclude provisionsrequiring thecontractor, itsagents, and itsemployees toimplement amandatory drugtesting program forall its employees oragents working onthe job site innonclericalpositions.Citation: 21 Del. C. §2708; 29 Del. C.§ 8920 et seq.; 16Del. C. § 1142; 29Del. C. § 6908; 16Del. C. Ch 49A.

Employee testing is not subject to restriction. Implementation of Delaware's medical marijuana statute hasbeen suspended, so there are no regulations governing an employee who tests positive for marijuana use.Citation: 21 Del. C. § 2708;29 Del. C. § 8920 et seq.; 16 Del. C. § 1142; 29 Del. C. § 6908;16 Del. C. Ch 49A.

Further analysisis required incase of positivefindings. Aregisteredqualifying patientwill not besubject to penaltyfor the use ofmedicalmarijuana if he orshe possesses avalid registryidentificationcard. Anemployer maynot discriminateagainst a personin hiring,termination, orany term orcondition ofemployment, orotherwisepenalize aperson, if thediscrimination isbased upon theperson's status asa cardholder; or aregisteredqualifyingpatient's positivedrug test formarijuanacomponents ormetabolitesunless the patientused, possessed,or was impairedby marijuana onthe premises ofthe place ofemployment orduring the hoursof employment.An exception

Entities thatfurnishtransportationservices toschools; nursinghome facilities;home healthagencies; andDepartment ofCorrections.Public workscontractors.

No program.





Coveredemployers


applies if anemployer's failureto act wouldcause theemployer to losea monetary orlicensing-relatedbenefit underfederal law orfederalregulations.Employers arenot required toallow employeesto ingestmarijuana in anyworkplace or toallow anyemployee to workwhile under theinfluence ofmarijuana. Thelaw does notprotect the use ofmedicalmarijuana whendoing so wouldconstitutenegligence orprofessionalmalpractice,when in a schoolbus, when on thegrounds of anypreschool orprimary orsecondary school,or in anycorrectionalfacility.





Coveredemployers


DC An applicant may beoffered employmentcontingent uponreceipt of asatisfactory drugtest result. Anapplicant may workin a position that isnot safety-sensitiveprior to receivingtest results.

Random testing for drugs and alcohol is permitted. Each employee must be given one opportunity to seektreatment if needed. Motor vehicle operators are subject to urine and breath tests, with the employee’sconsent.

The District willgive notice of anytesting programat least 30 daysprior to testing.No employeemay be testedprior to receivingthe requirednotice. Drug oralcohol testing isallowedwhenever thesupervisor hasprobable cause orwhen a policeofficer arrests theperson and hasreasonablegrounds tobelieve that theemployee hasbeen operating amotor vehiclewithin the Districtwhile under theinfluence ofalcohol or drugs.

Medicalmarijuana ispermitted for aqualifying patientwith a signed,writtenrecommendationfrom a physicianto possess andadministermedicalmarijuana and topossess and useparaphernalia.Medicalmarijuana maynot be consumedanywhere otherthan the

Applicants andemployees ofthe Districtgovernment.Privatecontractors tothe District, andprivate entitiesthat provideemployees towork in safety-sensitivepositions.Districtemployees whoprovide directservices tochildren.Separately, inconnection withits lawsdecriminalizingthe use ofmarijuana, theDistrict hasadoptedlegislationproviding thatprivateemployers mayonly test aprospectiveemployee formarijuana useafter aconditional offerof employmenthas beenextended,unlessotherwiserequired by law.The statutedoes notprohibitemployers fromwithdrawing anoffer based on a

No program.





Coveredemployers


qualifyingpatient’sresidence, ifpermitted, or at amedicaltreatment facilitywhen receivingmedical care for aqualifyingmedicalcondition. Medicalmarijuana mustbe transported ina labeledcontainer orsealed package.Individuals maynot undertakeany task underthe influence ofmedicalmarijuana whendoing so wouldconstitutenegligence orprofessionalmalpractice.Individuals maynot “operate,navigate, or be inactual physicalcontrol of anymotor vehicle,aircraft, ormotorboat” whileunder theinfluence ofmedicalmarijuana.

The law does notdiscuss the issueof employment-related drugtesting.

positive test.

Citation: D.C.Code § 32-931.





Coveredemployers


FL Testing is authorizedwith advance noticeto applicant; theapplicant's refusal tosubmit to testingmay be used asbasis for not hiring.Public employersmay test personsapplying forpositions who havebeen offeredemploymentconditioned uponsuccessfully passinga drug test.Citation: FSA §§440.101et seq., 112.0455.

Testing is authorized on the reasonable suspicion of substance abuse, as part of a routine fitness-for-dutyexam, or as a follow-up to an employee's participation in counseling or rehabilitation. Written notice of thetesting program must be given. Discipline or discharge is authorized for employees who test positive.Public employers may test employees on the basis of reasonable suspicion, as part of a routinely scheduledfitness-for-duty medical exam, or as a follow-up to a rehabilitation program. State agencies are authorizedto conduct random drug testing of employees at specified intervals. Employees are randomly selected by acomputer-generated sample administered by an independent third party. No more than 10 percent of eachagency's workforce may be tested every three months.Citation: FSA §§ 440.101et seq., 112.0455.

The law requiresa confirming testin case of positivetest findings,privacy for theemployee in thecollection of testspecimen,methods ofcollection,storage, andtransportationthat precludecontamination ofspecimen, andconfidentiality ofresults. A positivetest result mustbe confirmed by alicensed orcertifiedlaboratory. Iftesting isperformed as afollow-up to arehabilitationprogram, it mustbe conducted atleast once a yearfor a two-yearperiod aftercompletion of theprogram.Advance notice ofa follow-uptesting date mustnot be given tothe employee tobe tested. Anemployer mustpay the cost of alldrug tests, initialand confirmation,that the employerrequires ofemployees. Anemployee or job

Privateemployers;publicemployers withsafety-sensitiveand lawenforcementpositions;certain statecontractors.

Incentives: Employersimplementing a drug-freeworkplace program under theworkers' compensation law canreceive a deduction in workers'compensation premiums.Requirements: Employers mustimplement a program allowingfor preemployment, random,and postaccident drug testing.Employers must use approvedlabs, keep records of the chainof custody of samples, andadhere to other strictly enforcedcomponents.Citation: FSA § 112.0455.





Coveredemployers


applicant mustpay the costs ofany additionaldrug tests notrequired by theemployer (e.g.,for retesting aftera positive result).





Coveredemployers


GA Testing is authorizedfor applicants forstate governmentemployment, publicschool employment,and privateemployment.Substance abusetests are allowedafter anemployment offer isextended if testingis required of allapplicants as acondition ofemployment.Limited testing ofjob applicants ispermitted as long astesting is conductedon the basis ofreasonableclassification of jobpositions. Anapplicant whorefuses to be testedor who tests positivemay be barred fromstate and publicschool employmentfor two years.Citation: O.C.G.A. §45-23-1et seq. § 45-20-110et seq.,34-9-410 et seq.

Testing, including random testing, is authorized on reasonable suspicion, as part of a routine fitness-for-duty exam, after an on-the-job injury, and as a follow-up to rehabilitation, or employee assistance program(EAP) participation resulting from a positive test result. Follow-up testing must be conducted at least oncea year for a two-year period after completion of an EAP or rehabilitation program. If the employeevoluntarily entered a rehabilitation program, follow-up testing is not required. The testing policy must bedistributed to employees and posted, and it must advise employees of Georgia's drug-free workplacestatute.Random testing of "high risk" state government and public school employees, including school bus drivers,is authorized under separate provisions.Citation: O.C.G.A. § 45-23-1et seq., § 45-20-110 et seq.,34-9-410 et seq., 45-20-90.

If testing isconducted basedon reasonablesuspicion, theemployer mustrecord thecircumstancesthat formed thereasonablesuspicion; a copyof the test resultsmust be given tothe employeeupon request;and the originalresults must bekept confidentialby the employerand retained forat least one year.Urinalysisconducted byapprovedlaboratories,testing at theemployer's worksite with an on-site testing kit, oruse of oral testingthat satisfieslegal testingcriteria areacceptable.Methods toassure privacy foremployee incollection ofspecimen,methods ofcollection,storage, andtransportationthat ensurenoncontaminationof specimen, andconfidentiality oftest results are

Stategovernmentemployers,public schools,and entities thatfurnishtransportationservices toschool systems;privateemployers.

Incentives: Workers'compensation: Georgia has avoluntary workers'compensation premiumreduction statute that provides aminimum 7.5 percent discounton workers' compensationinsurance premiums foremployers that implement andmaintain a certified program.Contractors program:Contractors who receive statecontracts of $25,000 or moreand meet requirements of theDrug-Free Workplace Act qualifto do business with the state.Requirements: Workers'compensation discount:Employers must implement aprogram containing thefollowing five elements: (1) awritten policy statement, (2)substance abuse testing, (3)resources of employeeassistance providers, (4)employee education, and (5)supervisor training.Contractors: The programrequires contractors to publish astatement notifying employeesthat the unlawful manufactursale, distribution, dispensation,possession, or use of drugs isprohibited. They also mustestablish a drug-free awarenessprogram.Covered employers: Workers'compensation: Privateemployers except those who arself-insured. Contractors:Contractors who receive statecontracts of $25,000 or more.Citation: O.C.G.A. §§ 50-24-1 to50-24-6; Workers' compensationdiscount: O.C.G.A. §§ 34-9-412through 34-9-415; O.C.G.A. §33-9-40.2





Coveredemployers


required. Aconfirming test isrequired after apositive result.Test informationmay be releasedonly when awritten, voluntaryconsent form issigned by theperson tested orif the release iscompelled by anagency or court.Within fiveworking daysafter receipt ofthe results, theemployer mustinform theemployee orapplicant inwriting of apositive testresult, theconsequences ofsuch results, andany optionsavailable. Uponrequest, theemployer mustalso provide acopy of the testresults. Employermust pay for alltests that itrequires; theemployee or jobapplicant mustpay the cost ofany additionaltests not requiredby the employer.Testing conferseligibility forcertain discountsand other





Coveredemployers


benefits underworkers'compensationlaw.





Coveredemployers


HI Testing is authorizedif the applicantreceives advancenotice in writing ofsubstances to betested for and hasthe opportunity todisclose currentprescription andnonprescriptionmedications.Public employersmay only conductpreemploymentdrug testing forsafety-sensitivepositions thatinvolve work posinga great danger tothe public.Citation: HRS §329B-1 et seq.;HRS § 329-121 etseq.

Employers must have a written policy that details substances for which the employee will be tested. Thepolicy must list prescription and nonprescription medications that may cause a positive test result. Statecitizens have the right to obtain and use marijuana for medical purposes when the medical use is deemedappropriate and has been certified as such by a physician. This does not apply to workplace medical use.Citation: HRS § 329B-1 et seq.; HRS § 329-121 et seq.

Methods mustassure privacy foremployee incollection ofspecimen andreliability ofresults. Aconfirming test isrequired in caseof positivefindings. On-sitetesting isprohibited foremployees, butallowed forapplicants.Portablesubstance abusetests used forpreemploymentpurposes mustmeet therequirements ofthe U.S. Food andDrugAdministration forcommercialdistribution. Anoperator whoadministers asubstance abuseon-site screeningtest must havebeen trained inthe use andadministering ofthe on-sitescreening test bythe testmanufacturer orthemanufacturer'sdesignee.Employers mustpay all testingcosts.

All employers. Incentives: Hawaii doesn't offeremployers express incentives toestablish a drug-free workplace,but the Hawaii Insurance Codeprovides that employerscertified as having an effectivesafety and health program willreceive at least a five percentdiscount on workers'compensation insurancepremiums.Requirements: Employers arerequired to maintain an effectivesafety and health programthroughout the policy period.Covered employers: Allemployers.Citation: HRS § 431:14-103.





Coveredemployers


ID Testing is authorizedas a condition ofemployment. Publicemployers may onlyconductpreemploymentdrug testing forsafety-sensitivepositions thatinvolve work posinga great danger tothe public.Citation: Idaho Code§ 72-1701et seq.

Testing is authorized, including random testing and reasonable suspicion testing, after notice is provided toemployees. Testing policy must be in writing and must list types of tests and must state that violation ofthe policy is grounds for misconduct discharge. Time spent undergoing drug and alcohol testing iscompensable as work time.Citation: Idaho Code § 72-1701 et seq.

After a positiveon-site testresult, theemployer mustsend theemployee orapplicant to alicensedlaboratory withinfour hours to beretested.Confirming testafter positiveresults;confidentiality oftest; andmethods ofcollection,storage, andtransportationthat ensurenoncontaminationof specimen arerequired. The useof portablesubstance abusetests that meetthe requirementsof the U.S. Foodand DrugAdministration forcommercialdistribution ispermitted forapplicants andemployees. Theperson whoadministers thesetests must betrained and mustadminister thesubstance abuseon-site screeningtest according tothe packageinsert thataccompanies the

All employers. Incentives: Employersimplementing alcohol and drug-free workplace programs incompliance with the IdahoEmployer Alcohol and Drug-FrWorkplace Act may be eligiblefor reduced workers'compensation premiums.Requirements: Employers mustadhere to voluntary drug/alcoholtesting guidelines. The Actpermits drug/alcohol testing as acondition of hiring or continuedemployment. Employers mustcompensate current employeesfor time spent testing, andemployers must pay testingcosts. Employers mustimplement written testingpolicies, and provide employeesor applicants with written noticeof results. Employees must begiven the opportunity to explainpositive results and may requestthat a sample be retested.Covered employers: Allemployers.Citation: Idaho Code § 72-1716.





Coveredemployers


test.

IL Covered employersmust informapplicants of drug-free workplacepolicy.Citation: 30 ILCS580/1 et seq.

Covered employers must establish a drug-free awareness program to inform employees about the dangersof drug abuse in the workplace; the grantee's or contractor's policy of maintaining a drug-free workplace;any available drug counseling, rehabilitation, and employee assistance programs; and the penalties thatmay be imposed upon employees for drug violations. It is a Class 4 felony to defraud a drug or alcoholscreening test.Citation: 30 ILCS 580/1 et seq.

The employermust takespecific steps topreventemployees fromengaging in theunlawfulmanufacture,distribution,dispensation,possession, oruse of acontrolledsubstance,including postinganddissemination ofa statementnotifyingemployees ofemployer's policyand actions takenfor violation. It isa criminalviolation todefraud a drug oralcohol screeningtest byadulterating orsubstituting asample or bymanufacturing anadulterant to beused to alter atest sample.

Employers witha state grant orcontract of$5,000 or more.

Incentives: Only employersmeeting the law's requirementsqualify for state grants orcontracts of $5,000 or more.Requirements: Prospectivegrantees or contractors mustcertify that they will provide adrug-free workplace by (1)publishing a statement notifyingemployees that the unlawfulmanufacture, distribution,dispensation, possession, or useof a controlled substance atwork is prohibited, specifyingactions that will be taken forviolations, and notifyingemployees that they must notifthe employer of any criminaldrug statute conviction for aviolation in the workplace withinfive days; (2) establishing adrug-free awareness program;(3) providing copies of thestatement to all employeesengaged in the performance ofthe grant/contract and posting itin a prominent place; (4)notifying the state agency within10 days after receiving notice ofan employee's criminal drugconviction; (5) imposing asanction on or requiringrehabilitation of an employeewho receives a criminal drugconviction; and (6) assistingemployees in obtainingtreatment.Covered employers: Applies toemployers with 25 or moreemployees applying for statecontracts or grants of $5,000 ormore.Citation: Illinois Drug FreeWorkplace Act: 30 ILCS 580/1,seq.





Coveredemployers


IN Childcare industry:Drug tests shall be

administered to allemployees andvolunteers ofchildcare centers,childcare providers,and childcare homesbefore employmentor volunteeractivities begin.

Citation: I.C. §§12-17.2-4-3.5,12-17.2-3.5-12.1,12-17.2-5-3.5

Childcare industry: Childcare providers and employees or volunteers of childcare centers and childcareministries must have a written policy explaining that drug testing of individuals who serve as caregiverswill be performed based on a protocol established or approved by the Family and Social ServicesAdministration. Drug testing may also be required if an individual is suspected to be under the influence ofillegal substances.

Public works contractors: Each of a contractor’s employees must take a drug test at least one time eachyear. Drug tests must be random and must cover at least two percent of the contractor’s employees eachmonth.

Citation: Childcare industry: I.C. § 12-17.2-3.5-12.1. Public works contractors: I.C. § 4-13-18-6.

Public workscontractors: Acontractor’s drugtesting programmust imposeprogressivediscipline on anemployee whofails a drug test.

All: It is illegal tointerfere with orattempt tointerfere with adrug or alcoholscreening test byusing a device orsubstance,substituting ahuman bodilysubstance that istested in a drugor alcoholscreening test,oradulterating asubstance used ina drug or alcoholscreening test.

Citation: Publicworkscontractors: I.C.§ 4-13-18-6. All:I.C. §§35-43-5-18,35-43-5-19.

Child careproviders,public workscontractors.

Incentives: Private employersmust certify their drug-freestatus, including submission of awritten plan for an employeedrug testing program, to qualifto receive state governmentgrants or contracts.Citation: I.C. § 4-13-18-5.

Requirements: Any privatelegal entity that receives a grantor contract funds from stategovernment must certify that itwill provide a drug-freeworkplace by (1) publishing astatement notifying allemployees that the unlawfulmanufacture, sale, distribution,or possession of a controlledsubstance is prohibited;(2)establishing a drug-freeawareness program that inforemployees about the dangers ofdrugs in the workplace, theavailability of treatmentprograms, and the company’santidrug policy and penalties;(3) providing each employeewith a copy of the drug-freeworkplace statement; and (4)notifying each employee thatcompliance is a condition ofemployment. To remain incompliance, employees mustnotify the employer within fivedays of any conviction for a drugviolation in the workplace. Then,the employer has 10 days tonotify the contractinggovernment agency. Uponreceipt of notice, the companyhas 30 days to take disciplinaryaction or send the employee fortreatment.Covered employers: Privateemployers receiving grant orcontract funds from stategovernment.





Coveredemployers


Citation: Executive Order 90-5.IA Testing is authorized

as a condition ofemployment andaccording to termsof a written policythat must be madeavailable for review.

Citation: Iowa Code§ 730.5.

Testing is authorized, including when there is probable cause to suspect substance abuse and as part of aninvestigation into an accident that resulted in significant injury or property damage. Unannounced testingis allowed for the entire employee population at a worksite, unless otherwise prohibited by a collectivebargaining agreement. Unannounced testing is also permitted for all employees in safety-sensitivepositions scheduled to work at the time of testing, unless prohibited by a collective bargaining agreement.Employees not scheduled to work or excused pursuant to employer policy will not be subject to testing.Substance abuse evaluation and opportunity for treatment must be provided for first positive test result.Discipline or discharge is authorized for a subsequent positive result or failure to complete treatment.

Citation: Iowa Code § 730.5.

A written testingpolicy thatsatisfies certainrequirements laidout in Iowa Code§ 730.5 isrequired.Employers mustreimburse theiremployees fortime andexpenses relatedto drug or alcoholtesting. Testsubjects must begiven theopportunity toexplain or rebutpositive findingsand to requestconfirmationthrough retesting.Confidentiality oftest results mustbe preserved.Employers mayconduct hairtesting ofprospectiveemployees only.< /span>

Privateemployers withemployeesunder anycontract of hire,express orimplied, oral orwritten. Thisdoes not applyto testing doneunder DOTregulations.

Citation: IowaCode §730.5(1)(e).

Governor’s Office of DrugControl Policy, Drug-FreeWorkplacePrograms: https://odcp.iowa.gov/creatingdrw

KS Testing is authorizedfor applicants forsafety-sensitive jobsin state government,but only after aconditional job offerhas been made.Advertisements forsafety-sensitive jobsmust include noticeof drug-testingrequirement.

Citation: Kan. Stat.Ann. § 75-4362.

Testing is authorized for state employees holding safety-sensitive jobs and for individuals taking office asgovernor, lieutenant governor, or attorney general, members of the Kansas senate or house ofrepresentatives, any position in an institution of mental health, any position in the Kansas state school forthe deaf or school for the blind, and any employee of a state veteran’s home operated by the director ofthe Kansas Commission on Veterans Affairs. However, testing can only be based on a reasonable suspicionof illegal drug use. Except for employees with access to a secured biological laboratory in the office oflaboratory services of the Department of Health and Environment, employees testing positive for the firsttime must have the opportunity to undergo drug evaluation and recommended treatment.

Citation: Kan. Stat. Ann. § 75-4362.

Confidentiality oftest results isrequired, exceptin hearingsbefore the statecivil service boardregardingdisciplinaryaction takenagainst theemployee.

Citation: Kan.Stat. Ann. §75-4362(e).

Stategovernment.

No program.



https://odcp.iowa.gov/creatingdrw

https://odcp.iowa.gov/creatingdrw



Coveredemployers


KY Kentucky only hasprovisions regulatingdrug and alcoholtesting in relation toa few limitedprofessions,including: horseracing, miningoperations, theoperation of aircraft,law enforcement,teachers, and thosewho operatecommercial motorvehicles.

Law enforcementofficers: Applicantsfor positions as lawenforcement officersmust pass a drugscreening test.Mining operations:All applicants forcertification as newminers and anyother certificationsunder KRS ch. 351must provide proofof drug and alcoholfree status prior tocertification.

School busdrivers: Controlledsubstance andalcohol testing is acondition ofemployment forschool bus drivers,mechanics, andother jobs thatrequire a CDLlicense. Driversmust submit to pre-employment testing,post-accidenttesting, random

Horse racing: Any licensee of the Kentucky Horse Racing Commission must submit to drug or alcoholtesting upon request by the Commission, a steward, judge, or any other authorized employee of theCommission.

Operation of aircraft: Any operator or crewmember of an aircraft, or person acting as an operator orcrewmember, has statutorily been deemed to have consented to drug or alcohol testing if arrested forviolating KRS § 183.061.

Teachers: Kentucky authorizes random or periodic drug testing only following an administrative or judicialproceeding that has determined that the teacher engaged in misconduct involving the illegal use ofcontrolled substances. There must be at least three random tests within a period of 12 months from thedate of the proceeding.

Commercial motor vehicle operators: An operator of a commercial motor vehicle has statutorily beendeemed to have consented to drug or alcohol tests, in accordance with KRS § 189A.103, if stopped by a lawenforcement officer who has reasonable cause to believe the driver was operating the vehicle with drugs oralcohol in his system. Commercial motor vehicle operator training schools must require a drug test for eachperson who enrolls as a student at a training school.

Citation: Horse racing: 811 KAR § 1:225. Operation of aircraft: KRS § 183.061. Teachers: KRS §161.175; 701 KAR § 5:130.

There is noprovision for thistopic in this state.

There is noprovision forthis topic in thisstate.

The Energy and EnvironmentalCabinet allows a mine employerwho is also a licensee and hasimplemented a drug-freeworkplace program certified bythe Office of Mine Safety andLicensing to obtain a credit forthe premium paid on workers’compensation insurance. Theprograms are voluntary but,once undertaken, drug andalcohol testing must be inaccordance with federal andstate requirements. Theprogram must also meet theminimum requirements under805 KAR § 11:020 to be certifieda drug-free workplace.

Commercial motor vehicleoperators: KRS §§ 281A.220,332.095.





Coveredemployers


testing, andreasonable suspiciontesting.

Pipelineworkers: Kentuckylaw requires an anti-drug programaccording to therequirements of theadministrativeregulation and theUnited StatesDepartment ofTransportationprocedures. Eachperson hired mustsubmit to pre-employment testing,post-accidenttesting, randomtesting spreadreasonably througha 12-month period,and return to dutytesting.

Citation: Lawenforcementofficer: KRS §15.382. Miningoperations: KRS §§351.182, 351.184.School busdrivers: 702 KAR §5:080. Pipelineworkers: 807 KAR §5:023. Mine Drug-free WorkplaceProgram: KRS §351.186; 805 KAR §§11:010, 11:020.





Coveredemployers


LA Drug-testing ofapplicants as acondition of hire ispermitted.Confirmation testingis not required forapplicants who testpositive, but theemployer must givethe applicant anopportunity to havethe specimenconfirmed andreviewed by amedical reviewofficer at theapplicant's expense.Citation: La. Rev.Stat. Ann.§§ 49:1001 et seq.,23:1601(1).

Employee testing is authorized. A confirming retest using a different testing method is required. Anemployee who tests positive must have access to records relating to the drug test or disciplinaryproceedings within seven working days. Employees of state contractors are subject to random testing.The initial state-established cut-off level for marijuana testing (50 ng/ml) may be reduced or modified byany employer engaged in construction, maintenance, or manufacturing at any refining or chemicalmanufacturing facility.Citation: La. Rev. Stat. Ann.§§ 49:1001 et seq., 23:1601(1).

Methods toassure employeeprivacy must beused in collectionof specimen, buta witness may bepresent for post-accident testingand testingperformed onsuspicion ofsubstance abuse,or when there isreason to doubtthe integrity ofthe specimen.USFDA-clearedspecimen testingmethods areapproved forurine, blood,saliva, or hairsample tests,provided that thesample isprocessed in alaboratory with aSAMHSA or CAP-FUDT certificationand usinggenerallyaccepted cutofflevels asestablished bythe USFDA.Testing that mayresult in negativeemploymentconsequencesmust beperformed in acertifiedlaboratory.

Public andprivateemployers notsubject to afederallymandatedtestingprogram.

No program.





Coveredemployers


ME Employers may notdrug test applicantsunless they have inplace a drug testingpolicy approved bythe MaineDepartment of Laborand provide a copyof that policy to theapplicant. Applicantsmay only be testedif they have beenoffered employmentor offered a positionon a roster ofeligibility. Employersmay refuse to hirean applicant whowill not submit to atest or testspositive.Citation: 26 M.R.S.A.§§ 681 et seq.

Probable cause testing is allowed. Random testing is only allowed 1) if authorized by a collectivebargaining agreement; 2) the employee works in a position that would create an unreasonable threat tohealth or safety; or 3) the employer has 50 or more employees who are not covered by a collectivebargaining agreement, the policy was developed in conjunction with an employee committee, and theemployees chosen for testing are selected by an outside person. Employer may test employee with aprevious positive test between 90 days and one year after his return to work from leave. Employees can beterminated for refusing to test. Employees who test positive once must be offered up to 6 months ofrehabilitation. Employer with more than 20 employees must split cost of rehabilitation with employee.Employees with second positive test may be terminated.Citation: 26 M.R.S.A. §§ 681 et seq.

Employers maynot drug testemployees unlessthey have inplace a drugtesting policyapproved by theMaineDepartment ofLabor. The policymust be providedto all employeesat least 30 daysbefore the policytakes effect.Employers withmore than 20employees mustalso have in placean employeeassistanceprogram certifiedby the MaineDepartment ofHealth andHuman Services.Variousrequirements fortestingprocedures,laboratoryreports, etc.Citation: 26M.R.S.A. §§ 681 etseq.

All public andprivateemployers,regardless ofsize, as well asemploymentagencies. Doesnot apply tonuclearelectricalgeneratingfacilities oremployers whoare subject to afederallymandated drugand alcoholtestingprogram.Citation:26 M.R.S.A. §§681et seq.

No program.





Coveredemployers


MD Applicant testing isnot subject torestriction.Employers may usepreliminaryscreeningprocedures to testan applicant, unlesscollective bargainingagreement prohibits.If the test result ispositive, theemployer mustsubmit thespecimen forlaboratory testing.Citation: Md. CodeAnn., Health Gen. §17-214.

Employee testing is authorized if supported by legitimate business reason.Citation: Md. Code Ann., Health Gen. § 17-214.

Testing may onlybe performed bya certifiedlaboratory ofblood, urine, hairor saliva.Confirming testafter positiveresult must beprovided atemployee'sexpense. Resultsmust be providedin person or bycertified mailwithin 30 days ofthe testing.

All employers. Incentives: Certain statecontractors must certify thatthey maintain drug-freeworkplaces in order toparticipate in the governmentcontracting program.Requirements: Certain statecontractors must certify thatthey maintain a drug-freeworkplace.Covered employers: Statecontractors.





Coveredemployers


MA There is no provisionfor this topic in thisstate.

Massachusetts law protects individual privacy from “unreasonable, substantial or serious” interference.Mass. Gen. Laws ch 214, § 1B. To determine whether an employer’s drug testing policy violates its

employees’ privacy rights, courts balance the employee’s interest in privacy against the employer’scompeting interest in determining whether its employees are using drugs. Webster v. Motorola, Inc., 637N.E.2d 203 (Mass. 1994). Relevant factors include the nature of the employer’s business, the nature of theemployee’s duties, and any safety risk to the employer, the employee, or the public. A random drug-testing policy may also compete with an individual’s right to privacy under Article 14 of the StateConstitution, which protects against unreasonable search and seizure. Guiney v. Police Comm’r of Boston,582 N.E.2d 523 (Mass. 1991).

An employer’srandom drugtesting programwas held to be inviolation of thestate privacy lawbecause it did notdistinguishbetween thoseemployees whohold safety-sensitivepositions andthose who do not.Webster v.Motorola, Inc.,637 N.E.2d 203(Mass. 1994). Adrug testingprogram may be“unreasonablyintrusive” if theindividual beingtested isobserved whileurinating, orotherwise visuallyinspected duringthe procedure.Webster, 637N.E.2d at 208.

An employer mayperform randomdrug testing forindividuals whohold safety-sensitivepositions.Employers mayalso performpost-offer, pre-employment drugand alcoholtesting ofapplicants.However,employers should


No program.





Coveredemployers


be aware that atrial courtrecently alloweda plaintiff's claimfor invasion ofprivacy toproceed after shetested positivefor medicalmairjuana after apre-employmenttest. The courtfound thatbecause thewoman was notin a safetysensitive position,it could be aninvasion of herprivacy to requirea drug test.Employers

should be awareof this decision.Barbuto v.

Advantage Sales& Marketing.Employers mayalso perform“reasonablesuspicion” drugtesting when theemployer hasobjectiveevidence tosuggest that anemployee isunder theinfluence of drugsor alcohol atwork.





Coveredemployers


MI There is no provisionfor this topic in thisstate.

Use of medical marijuana is not permitted when doing so would constitute negligence or professionalmalpractice. Individuals may not possess marijuana or otherwise engage in the medical use of marijuana ina school bus, on the grounds of any preschool or primary or secondary school, or in any correctional facility.Employers are not required to accommodate the ingestion of marijuana in any workplace or any employeeworking while under the influence of marijuana.Citation: MCL § 333.26421.

The medical useof marijuana ispermitted forqualifyingpatients whohave registeredwith the stateand possess avalid registryidentificationcard. Qualifyingpatients may notbe punished fortheir lawfulpossession or usemedicalmarijuana.Individuals maynot smokemarijuana on anyform of publictransportation; orin any publicplace, and maynot operate,navigate, or be inactual physicalcontrol of anymotor vehicle,aircraft, ormotorboat whileunder theinfluence ofmarijuana.


No program.





Coveredemployers


MN Applicant testing isauthorized, pursuantto employer'swritten policy andwith advancenotification ofapplicant, but onlyafter offer ofemployment hasbeen made and onlyif all candidates forjob are tested.Citation: Minn. Stat.§ 181.951.

Routine physical examination testing: Acceptable as part of an annual, routine physical examinationprovided the employee has at least two weeks' written notice.Random testing: Only if employees are (1) in a safety-sensitive position, or (2) professional athletes subjectto a collective bargaining agreement allowing testing.Reasonable suspicion testing: Permissible if employer has a reasonable suspicion that the employee: (1) isunder the influence of drugs or alcohol; (2) has violated the employer's written work rules while theemployee is working or while the employee is on the employer's premises or operating the employer'svehicle, machinery, or equipment, provided the work rules are in writing and contained in the employer'swritten drug and alcohol testing policy; (3) has sustained or caused another's personal injury, or (4) hascaused a work-related accident or was operating machinery, equipment, or vehicles involved in a work-related accident.Treatment program testing: Testing allowed for a period of up to two years following completion of anyprescribed chemical dependency treatment program. Testing allowed without notice during treatment ifreferred by the employer for treatment or evaluation or the employee is participating in treatment underan employee benefit plan.Citation: Minn. Stat. § 181.951.

Testing may beconducted onlyby certifiedlaboratory.Documentationshowing chain ofcustody andconfirming test incase of positivefindings arerequired.Employee mustbe given writtennotice of the rightto explain thepositive test.Employers maynot take adverseemploymentaction ordiscriminateagainst employeefor positive testresult from aninitial screeningtest that has notbeen verified by aconfirmatory test.Additionally, theemployer mustmeet statutoryconditions beforedischarging anemployee after afirst positiveconfirmatory testresult.Citation: Minn.Stat. § 181.953.

Public andprivateemployers.

No program.





Coveredemployers


MS Applicant testing isauthorized, pursuantto written notice. Anemployer mayrefuse to hire anemployee whorefuses to test orwho tests positive.Citation: Miss. CodeAnn. § 71-7-1et seq.

Employee testing is authorized in the following circumstances: on reasonable suspicion of substanceabuse, in connection with rehabilitation or treatment, as part of a routine physical exam, on a neutralselection basis, if the employee had a confirmed positive within the past 12 months, or if a collectivebargaining agreement authorizes random testing. Discharge is authorized if the employee has a confirmedpositive test or refuses to test.Citation: Miss. Code Ann.§ 71-7-1 et seq.

Employer mustprovide advancewritten notice oftest,documentationshowing chain ofcustody, andopportunity foremployee toexplain positivefindings. Testingmust conform toscientificallyacceptedanalyticalprocedures. Allpositive resultsmust beconfirmed using adifferent testingmethod of equalor greatersensitivity thanthe positive testmethod.Confidentiality oftest results ismandatory.

Each test mustbe paid for bythe individualwho requestedit. Public andprivateemployers.

No program.





Coveredemployers


MO Applicants convictedof a criminal offenseinvolving the use ofcontrolledsubstances,marijuana, or otherdangerous drugswithin three yearsprior to applying forpublic employmentare ineligible for anypublic employmentwithout proof ofcompletion orcontinued successfulparticipation in astate-certified drugabuse treatmentprogram.Citation: RSMo. §105.1100 et seq.

Employees convicted or pleading guilty to a criminal offense involving use of a controlled substance,marijuana, or other dangerous drug must complete a drug abuse treatment and education programcertified by the state. Second conviction or plea will result in the employee's dismissal.Citation: RSMo. § 105.1100 et seq.

Individuals maybe disqualifiedfrom receipt ofunemploymentwhen dischargedfor having a"detectibleamount of alcoholor a controlledsubstance" inviolation of theemployer'ssubstance abuseprevention policy.Notice andtestingrestrictions applyforunemploymentdisqualification.

Employees ofexecutivebranch stategovernment,excluding peaceofficers andemployees insafety-sensitivepositions.

No program.





Coveredemployers


MT Post offer, pre-employment testingis authorized forintrastate motorcarrier jobs, for jobsin hazardousenvironments, orjobs that primarilyinvolve security,public safety, orfiduciaryresponsibility.Public employersmay only conductpreemploymentdrug testing forsafety-sensitivepositions thatinvolve work posinga great danger tothe public.Citation: Mont. CodeAnn.§§ 39-2-205 et seq.

An employer may randomly test if the testing policy includes one or both procedures: (1) a date of testingof all employees; (2) a random testing process that includes an established calendar period for testing, anestablished testing rate within the calendar period, a random selection process, all supervisory andmanagerial employees in the random selection and testing process, and a signed statement from eachemployee that says that he or she has received a written description of the entire testing process.Specific, individual employee testing only permitted under reasonable belief of job impairment, belief thatthe employee contributed to accident, or in cases of property damage greater than $1,500. Follow-up teststo positive results are allowed in specified circumstances.Citation: Mont. Code Ann.§§ 39-2-205 et seq.

Before testing,employers mustestablish awritten procedureprotectingprivacy incompliance withtesting procedurein 49 CFR 40. Asigned statementfrom eachemployeeacknowledgingreceipt of policyand proceduresfor testing isrequired.Advance writtennotice of testingprocedures,confirming test incase of positivefindings, andopportunity foremployee torebut positivefindings are allrequired.Disciplinaryaction isauthorized if theemployeepresents noreasonableexplanation forpositive findings.The law does notrequire anemployer toaccommodatethe medical useof marijuana inany workplace.


No program.





Coveredemployers


NE Applicant testing isnot subject torestriction.Citation: Neb. Rev.Stat.§ 48-1901 et seq.

Employee testing is authorized without restriction. Discipline or discharge is authorized after a confirmingpositive test, refusal to submit to test, or tampering with a test specimen.Citation: Neb. Rev. Stat.§ 48-1901 et seq.

Employers mustprovide aconfirming test incase of positivefindings, theoption for bloodtest after positivebreath test, andmethods toensureconfidentiality oftest findings.

Privateemployerswith six or moreemployees;publicemployers.

No program.





Coveredemployers


NV Applicant testing isauthorized for jobsinvolving publicsafety.Public employersmay only conductpreemploymentdrug testing forsafety-sensitivepositions thatinvolve work posinga great danger tothe public.Citation: NRS284.406 et seq.

Employee testing is authorized for jobs involving public safety. Referral for counseling or treatment isauthorized for employees testing positive. Discipline or discharge is authorized for subsequent positivefindings, for workplace use, or for working under the influence.Citation: NRS 284.406 et seq.

Testing may onlybe conducted byan independentlaboratory. If theresults arepositive, the"laboratory shallconduct anothertest of the samesample of urineto ascertain thespecificsubstances andconcentration ofthose substancesin the sample."Employer mustprovide aconfirming test incase of positivefindings.Use of medicalmarijuana isallowed whendeemedappropriate andcertified byattendingphysician.Medicalmarijuanaexception appliesonly to personsholding a validregistryidentification cardand does notrequire work siteuse as anaccommodation.Citation: NRS284.4067 and453A.010et seq.

Stateagencies.

No program.





Coveredemployers


NH Employers may notrequire applicants oremployees to paythe costs ofnonrequired drug/alcohol tests as acondition ofemployment. Schoolbus drivers mustsubmit to drug/alcohol testing.Governmentalentities requiringemployees toproduce urinesamples for drugtesting areconsidered to beconducting a searchand must meet thereasonablenessrequirements of theFourth Amendment.Citation: Costs: N.H.Rev. Stat. Ann.§ 275:3; N.H. CodeAdmin. R., Lab803.02. School busdrivers:N.H. Code Admin. R.,Saf-C 1304.01.

See Applicant testing column. There is noprovision for thistopic in this state.


No program.





Coveredemployers


NJ Employer mayrequirepreemploymentdrug testing. Joboffers may beconditioned onapplicant's passing adrug test, regardlessof whether theposition is safety-sensitive.Citation: Vargo v.Nat'l Exch. CarriersAss'n, 376 N.J. Super364 (App. Div.2005).

Benefits of random drug testing must be balanced against privacy rights of the individual, and randomdrug testing is permitted only for employees in safety-sensitive positions. Hennessey v. Coastal Eagle PointOil, 609 A.2d 11 (N.J. 1992). Employers only required to reinstate an employee once after positive test andcompleting rehabilitation.Citation: In the Matter of Henry Jackson, 294 N.J.Super. 233 (App. Div. 1996).

Employer shoulduse the leastintrusive testingmeasures,maintainconfidentiality ofresults, giveemployees noticeof drug-testingprogramimplementation,detail employeeselectionmethods, warnemployees of thelingering effect ofdrug use, explainhow samples willbe analyzed, andnotify employeesof theconsequences oftesting positive orrefusing tosubmit to a drugtest. Hennessey,609 A.2d 11. TheCompassionateUse MedicalMarijuana Actdecriminalizesmedical use ofmarijuana understate law forpatients wholegally usemedicalmarijuana toalleviatesymptoms or sideeffects oftreatmentrelating to certain"debilitatingmedicalconditions."Patients must

All employers. No program.





Coveredemployers


haveidentificationcards and theirnames on aconfidentialregistry.Employers haveno obligation toaccommodatemedical use ofmarijuana in theworkplace;however, it isunclear what anemployer'sobligation may beto accommodatean employee whotests positive forlegalconsumption ofmarijuana.Citation: N.J.S.A.24:6I-2.





Coveredemployers


NM Public sectorapplicants in safety-sensitive positionsmust be tested afterreceiving a job offer,but before anappointment ismade.Citation: NMPersonnel BoardRules 8.8, 11, 17.3.

Testing is allowed for employees for whom drug/alcohol impairment would constitute an immediate, directthreat to public health or safety. At least 10% of employees must be subjected to random drug testing eachyear. Reasonable-suspicion drug/alcohol testing of employees is permitted only when there is a directobservation of: (1) drug/alcohol use, (2) drug or drug paraphernalia possession, or (3) physical symptomsor manifestations of drug/alcohol impairment.Citation: NM Personnel Board Rules 8.8, 11, 17.3.

Before collectinga specimen, thesupervisor mustobtain approvalfrom the nexthighestsupervisor.Specific factssupportingreasonable-suspicion testingmust be includedin a writtenmemo within 24hours ofcollecting aspecimen andmust besubmitted to theemployer-agency's drugabusecoordinator.Other proceduresmust be followedbefore, during,and after testing.Applicants andemployees mustreceive their testresults in writing.Test results andrelatedinformation areconfidential.Positive initialdrug testing mustbe confirmed.Use of marijuanato treat specificmedicalconditions ispermitted.Qualified patientsreceive medicalcertification andhave a registry

Public sectoremployers.

No program.





Coveredemployers


identification cardafter registeringwith the state.Employers maystill prohibit useof medicalmarijuana in theworkplace.

NY If an employerchooses to conductdrug testing, it mustbe done by arefutable drugtesting laboratory.New York courtshave deemed itunconstitutional anddiscriminatory toreject a potentialemployee basedsolely on a positivedrug test. Theemployer must beable to demonstratethat the potentialemployee'ssubstance abuse willprevent him fromdoing his job.

An employee who tests positive for a drug test could request for a retest from a laboratory of his choice.Further, the decision to fire an employee based solely on a positive test report, without regard to theemployee's actual job performance is illegal, unless it is required by law, or the employee holds a safetysensitive position.



No program.





Coveredemployers


NC Applicant testing issubject toproceduralrestrictionsdescribed inConditions/methodscolumn. If ascreening test for aprospectiveemployee ispositive, anapproved laboratorymust confirm theresult with a secondtest, utilizing GC/MSor an equivalentscientificallyaccepted method,unless theprospectiveemployee signs awritten waiver at thetime or after theyreceive thepreliminary testresult.Citation: N.C. Gen.Stat.§ 95-230 et seq.;N.C. Gen. Stat.§ 20-37.19.

The examiner must provide the employee with written notice of his or her rights and responsibilities whensample is taken. The employee must be given notice of positive result within 30 days, along with rightsregarding retesting. Employees have right to retest and confirm positive samples at approved laboratory.Employers must report positive drug or alcohol tests conducted under federal regulations to the Division ofMotor Vehicles in writing within five business days of receiving positive test. Specific requirements forpublic transit officers and operators of commercial vehicles apply. All positive screening tests for currentemployees must be confirmed by a second examination of the sample utilizing GC/MS or an equivalentscientifically accepted method.Citation: N.C. Gen. Stat.§ 95-230 et seq.; N.C. Gen. Stat.§ 20-37.19.

Testing must beperformed underreasonable andsanitaryconditions.Employer mustprovidedocumentationshowing chain ofcustody ofsamples, as wellas a confirmingtest by a certifiedlaboratory in caseof positivefindings. Aportion of everysample thatproduces apositive resultmust bepreserved for atleast 90 daysfrom the time thetest results aremailed orotherwiseconfirmed anddelivered.All positive testsmust beconfirmed by gaschromatographywith massspectrometry(GC/MS) or anequivalentmethodology.


No program.





Coveredemployers


ND Applicants fordriving positionswith passengercontract carriers arerequired to undergoalcohol andcontrolled substancetesting beforeperforming anyduties for thecontract carrier. If anemployer requiresan applicant to takea drug or alcoholtest as a conditionof obtainingemployment, theemployer must payfor the test and forthe furnishing of anymedical records.Citation: N.D.C.C. §34-01-15,§ 12.1-11-07;N.D.A.C.38-09-01-06.

See Applicant testing column. A person is guiltyof a class Amisdemeanor ifthat personwillfully defraudsa urine test andthe test isdesigned todetect thepresence of achemicalsubstance or acontrolledsubstance. Aperson is guilty ofa class Amisdemeanor ifthat personknowinglypossesses,distributes, orassists in the useof a device,chemical, or realor artificial urineadvertised orintended to beused to alter theoutcome of aurine test.

Passengercontractcarriers:Passengercontract carriersas defined byN.D.C.C.§ 8-02-08.

Employees of all state agenciesthat receive federal grants arrequired to certify that theyunderstand the requirementsregarding the maintenance of adrug-free workplace.Citation: SFN 16769.





Coveredemployers


OH Applicant testing fordesignated positionsfor the state serviceis authorized withadvance notice toapplicant and afteroffer of employmenthas been made.Required for thoseemployers in theworkers'compensationpremium reductionprogram.Citation: OhioAdmin. Code §123:1-76 et seq.

Employee testing is authorized on reasonable suspicion of substance abuse, for new hires, after anaccident, randomly, and as follow-up to a treatment program. For the workers' compensation premiumreduction program, testing is required for pre-employment, random, reasonable suspicion, post-accident,and as follow-up to a treatment program.Citation: Ohio Admin. Code§ 4123-17-58 et seq.

Employers mustprovidedocumentationshowing chain ofcustody of testsamples and aconfirming test incase of positivefindings. Awritten policystatement isrequired. Testingconfers eligibilityfor certaindiscounts andother benefitsunder workers'compensationlaw. Workers'compensationbenefits may bedenied foremployees whoare injured whileunder theinfluence of illicitdrugs or alcoholwhere theintoxication wasproximate causeof the injury.Citation: OhioRev. Code §§4123.54 and4123.54(G); OhioAdmin. Code §4123-17-58.

Unrestricteddrug testing ispermitted forpublic andprivateemployers.Requirementslisted arevoluntary ifworkers'compensationpremiumreduction isdesired.Voluntaryworkers'compensationpremiumreductionprogram onlyfor state fundemployers, notself-insured.Stateemployees arealso subject todrug testing.Contractors andsubcontractorsbidding on stateconstructionprojects arerequired toestablish adrug-freeworkplaceprogramidentical to thatrequired for theworkers'compensationpremiumreductionprogram.Citation: OhioRev. Code§ 153.03; Ohio

Incentives: Employers whoestablish a drug-free workplaceprogram are given workers'compensation incentives.Requirements: The Drug FreeSafety Program offers apremium discount to eligibleemployers for implementing aloss-prevention strategyaddressing workplace use andmisuse of alcohol and otherdrugs, especially illegal drugs.Covered employers: All stateworkers' compensation fundemployers. Other employers areligible for technical supportfrom the program but nopremium discounts.Citation: Ohio Admin. Code §4123-17-58.





Coveredemployers


Admin. Code.§ 123:1-76.

OK Applicant testing isauthorized withadvance notice toapplicant and afteroffer of employmenthas been made.Notice must be inwriting and mustdescribe methods,procedures, andpolicies in detail.Citation: Okla. Stat.Tit. 40§ 551-563 revised(2011).

The Oklahoma Standards for Workplace Drug and Alcohol Testing Act provides for the testing of applicants,employees, and, in some cases, independent contractors who are not subject to federal drug and alcoholtesting requirements. Testing may only be performed if the employer has a written policy distributed toemployees as provided by the Act at least 10 days in advance of the policy's effective date. The Actpermits the following types of testing: 1) pre-employment after a conditional offer of employment;2) for-cause; 3) post accident;4) random; 5) scheduled or periodic; 6) transfer or reassignment; 7) fitness for duty/return to work; and8) post rehabilitation. The Act permits the use of reliable single-use test devices. Special rules apply forpublic employers.Employees are entitled to request confirmation tests within 24 hours of receiving results of a positive drugor alcohol test.Citation: Okla. Stat. Tit. 40§ 551-563 revised (2011).

Testingprocedures mustensure privacyandconfidentiality ofresults.Employers mustmaintain awritten test policyspecifyingindividuals to betested, testingmethods,consequences ofrefusing a test,consequences ofa positive testresult, rights ofapplicant/employee toexplain testresults, andavailable appeals/sanctions. Alldrug and alcoholtest results andrelatedinformation mustbe kept separatefrom otherpersonnelrecords. Nodisciplinaryactions may betaken withoutadequateconfirmationtesting.


No program.





Coveredemployers


OR Alcohol testing isauthorized if there isreasonable suspicionthat an applicant isunder the influenceof alcohol. Drugtesting by privateemployers is notregulated.Public employersmay only conductpreemploymentdrug testing forsafety-sensitivepositions thatinvolve work posinga great danger tothe public.Citation: ORS §438.435 et seq.;659A.300; 659.840;279.312; 475.300;825.955.

Alcohol testing is authorized if there is reasonable suspicion that an employee is under the influence ofalcohol while on the job. All public contracts must include a condition that the contractor demonstrate anemployee drug-testing program. Motor carriers must have drug testing programs. Positive test results mustbe entered into employee's driving record.Citation: ORS § 438.435 et seq.; 659A.300; 659.840; 279.312; 475.300; 825.955.

Testing must bedone by a thirdparty. All positivetest results mustbe confirmed by astate licensedlaboratory. Statelaw allowsindividuals withchronic painconditions to takemedicalmarijuana, aslong as thetreatment isrecommended bya physician andthe patient hasregistered withthe state. Theemployer is notrequired toaccommodatethe medical useof marijuana inthe workplace. Anemployer mayalso still prohibitthe possession ofmarijuana orparaphernalia atwork. Anindividual is"under theinfluence ofintoxicatingliquor" whenblood alcoholcontent exceedsthe amountprescribed in acollectivebargainingagreement or theamountprescribed in theemployer's work

All employers.Statecontractors.Motor carriers.

No program.





Coveredemployers


rules, if there isno applicablecollectivebargainingprovision.

PA No statute regulatesdrug/alcohol testing.If testing is done,however, it’simportant tomaintain anindividual’s privacy.The Third Circuit hasheld that anemployer’s drugtesting programmay violate publicpolicy and give riseto a wrongfuldischarge claim if areasonable personwould find theprogram highlyoffensive balancingtwo factors: (1) theemployee’s privacyinterests; and (2)the employer’sinterest inmaintaining asubstance-freeworkplace. Borse v.Piece Goods Shop,Inc., 963 F.2d 611,625 (3d Cir. 1992).

No statute regulates drug/alcohol testing. If testing is done, however, it’s important to maintain anindividual’s privacy. 52 Pa. Code § 37.201-206 incorporates the U.S. Department of Transportation Drug andAlcohol testing requirements for transportation employers.



No program.





Coveredemployers


RI Applicant testing isauthorized in theprivate sector afteran offer ofemployment hasbeen made. In thepublic sector,testing is authorizedonly for jobsinvolving publicsafety or whenrequired by federallaw.Citation: R.I. Gen.Laws§ 28-6.5-1 et seq.

Employee testing is authorized on reasonable suspicion of substance abuse, based on "documentedobservations, concerning the employee's appearance, behavior or speech," and in conjunction withrehabilitation program.Citation: R.I. Gen. Laws§ 28-6.5-1 et seq.

Confirming test isrequired in caseof positivefindings, privacyfor employeemust bemaintained incollection ofspecimen, andemployee musthave theopportunity torebut testfindings. Awritten abuseprevention policyis required.Employees whotest positive can'tbe terminated;they must bereferred tosubstance abuseprofessionals forassistance. Iftesting showscontinued usedespitetreatment, thenthey may beterminated. Thestate medicalmarijuana lawprotects patientswith debilitatingmedicalconditions, andtheir physiciansand primarycaregivers, fromarrest andprosecution.Employers maynot refuse toemploy aqualifying patientwho has a


No program.





Coveredemployers


medicalmarijuanaregistryidentificationcard, solely basedon his or herstatus as aregisteredqualifyingpatient. Nothingin the statemedicalmarijuana lawmay be construedto require anemployer toaccommodatethe medical useof marijuana inany workplace.





Coveredemployers


SC Applicant testing isnot subject torestriction.Citation: S.C. CodeAnn.§ 38-73-500, §41-1-15;41-107-10 et seq.;42-90-60;42-11-100.

Testing is authorized, including random testing, with follow-up tests within 30 minutes of initial test.Covered state contractors must certify they will have a drug-free environment. Any employer who is agrantee or state contractor must take appropriate personnel action against an employee convicted of adrug-related offense, up to and including termination within 30 days of receiving notice of the employee'sconviction. The employer may require the employee to participate satisfactorily in drug abuse assistanceor rehabilitation.Citation: S.C. Code Ann.§ 38-73-500, § 41-1-15;41-107-10 et seq.; 42-90-60;42-11-100.

Positive testresults must beprovided inwriting to theemployee within24 hours. Writtennotification oftesting programmust be providedwhenimplemented orupon hire.

All employerssubject to stateworkers'compensationlaw. Statecontractors withcontracts of$50,000 ormore.

Incentives: Employersestablishing a drug-freeworkplace get a deduction ontheir workers' compensationpremiums provided their policymeets certain requirements. Thediscount is at least five percent.Requirements: Employers withfour or more employees (thesize employer required to carworkers' compensationinsurance) may receive apremium reduction provided (1)the substance-abuse policyincludes a statement that thepolicy balances the employer'srespect for individuals with theneed to maintain a safe,productive, and drug-freeenvironment; (2) the policyexplains that the intent is tohelp those who need it whilesending a message that theillegal use of nonprescriptioncontrolled substances or theabuse of alcohol is incompatiblewith employment; (3) allemployees are notified of thedrug prevention program and itspolicies at the time it'sestablished or at the time ofhire, whichever is earlier; (4) thepolicy includes random drugtesting; (5) the policy requires asecond test within 30 minutesafter the first test; and (6) thepolicy dictates that positiveresults must be provided to theemployee within 24 hours. Also,employers must keep records ofeach test for up to one year.Covered employers: Employerswith four or more employees.Citation: S.C. Code Ann. §38-73-500. Also, §§ 44-107-10seq.





Coveredemployers


SD Testing is required ofgovernmentemployee applicantsfor certain safety-sensitive state jobs,patient/resident careor supervision jobsat the HumanServices Center, SDDevelopmentCenter, and stateVeterans' Home,community supportprovider for thedevelopmentallydisabled, and firefighting jobs withDept. of Agriculture,but publicannouncements andadvertisementsmust carry notice ofdrug-testingrequirements.Citation: SDCL §3-6F-1,§ 3-6F-2, § 27B-1-19.

Government employee testing is authorized in the same job categories as applicant testing if there isreasonable suspicion of substance abuse.Citation: SDCL § 3-6F-1(4).Reasonable suspicion for patient and resident care for developmentally disabled employees.n Citation: § 27B-1-19.

Individual testresults andmedicalinformationcollected for drugtesting areconfidential. Thisinformation maybe revealed onlyas authorized bythe commissionerof the Bureau ofHumanResources. Anapplicant oremployee mayhave access tothe information ortest results uponwritten request tothecommissioner.Citation: SDCL §3-6F-3.

Stategovernment.

No program.





Coveredemployers


TN For employers thathave opted into theDrug-Free WorkplaceProgram, testing isauthorized afterapplicant is givenwritten notice of thedrug-testing policyand a conditionaloffer of employmentis made. Job adsmust include noticeof testing. Positiveresults or refusal totest may be groundsfor not hiring anapplicant.Drivers for child careagencies must betested for illegaldrug use beforebeing allowed toprovidetransportationservices forcompensation.Citation: Tenn. CodeAnn.50-9-101 et seq., §71-3-502(d)(7)(C).

For covered employers opting into the Drug-Free Workplace Program, testing is authorized, includingtesting on reasonable suspicion, as part of a fitness-for-duty exam, after an on-the-job injury, or as follow-up to a rehabilitation program. Employees must receive 60 days' advance written notice of testing policy,which also must be conspicuously posted.Employers that provide for-hire motor carrier transportation for eight or more passengers or to individualseligible for TennCare transportation services must conduct mandatory random drug testing of the operatorsof its motor vehicles in accordance with regulations promulgated by federal DOT. All childcare employersmust establish drug-testing policies for employees, directors, licensees, and operators providing servicesunder contract or for remuneration and who have direct contact with a child in the care of the agency.The policy must specify how testing will be completed and must provide for immediate and effectiveenforcement action in the event of a positive drug test.Citation: Tenn. Code Ann.§§ 50-9-101 et seq., § 65-15-116,§ 71-3-502(d)(7)(C).

Confidentiality oftest results isrequired as is aconfirming test incase of positiveresult. Testsubjects musthave anopportunity tocontest or explainpositive resultswithin five daysof receivingresults.

Drug-FreeWorkplaceProgram: Allemployerssubject to stateworkers'compensationlaw that opt into the program.Drivers of childcare: Allpersons orentitiesoperating achildcareagency.Motor carriertransportation:All employersthat provide for-hire motorcarriertransportationfor eight ormorepassengers orto individualseligible forTennCaretransportationservices.

Incentives: Employers followingrequirements for drug testingare entitled to a reduction inworkers' compensationpremiums and a presumptionthat an employee testingpositive on a drug test after awork-related injury was"intoxicated" at the time ofinjury and not entitled toworkers' compensation benefits.Requirements: The Departmentof Labor and WorkforceDevelopment providesemployers wishing to take partin the program a kit for followingthe terms of the statute andthen certifies employers'compliance.Covered employers: Employerscovered by the workers'compensation law who maintaina drug-free workplace and posta statement that the policy isbeing implemented.Citation: Tenn. Code Ann. §§50-9-101 through 50-9-114.





Coveredemployers


TX Pursuant to LaborCode § 21.120,employers mayadopt policiesprohibiting theemployment ofindividuals whocurrently use orpossess a controlledsubstance otherthan as authorizedby federal or statelaw. An employerwho is required,under the federalsafety regulations,to conduct alcoholand controlled-substance testing ofemployees mustreport valid positiveresults of anemployee who holdsa commercialdriver's licenseissued under theTexas TransportationCode within 10 daysto the TexasDepartment ofPublic Safety.Residential childcarefacilities mustimplement drug-testing policies. Themodel policyincludes mandatorypre-employmenttesting, randomtesting, and testingof employeesalleged to haveabused drugs.Citation: Tex. LaborCode 21.120, 37Tex. Admin. Code §4.21, and Tex.


All employers asto Tex. LaborCode§ 21.120.Employers whoemploy holdersof commercialdriver's licensesas to 37 Tex.Admin. Code §4.21.Residentialchildcarefacilityemployers as toTex. Human Res.Code§ 42.057.

Incentives: None. 28 TexasAdministrative Code 169.1 &169.2 (the Drug Free WorkplaceProgram), which requiredcovered employers withworkers' compensationinsurance to adopt policiesdesigned to eliminate drugabuse, has been repealed.





Coveredemployers


Human Res. Code §42.057.

UT No restriction onapplicant testing inthe private sector.Positive results and/or refusal to testmay be grounds fornot hiring anapplicant.Citation: Utah Code§ 34-38-1 et seq.

Employee testing is authorized pursuant to employer's written policy. Testing is also permissible in cases ofpossible employee impairment; workplace accidents or theft; and safety, maintenance, or productivity/quality/security maintenance. Employees who test positive or refuse to be tested are subject to referral forrehabilitation or disciplinary action, including discharge. Employers must pay all associated costs.Citation: Utah Code § 34-38-1et seq.

Documentationshowing chain ofcustody fromtime of collectionis required.Confirming testmust be obtainedin case of positivefindings. Drug oralcohol testingmust occurduring orimmediately afterthe regular workperiod of currentemployees andmust be deemedwork time forpurposes ofcompensationand benefits forcurrentemployees.

Privateemployers.

Incentives: No statutoryincentives, per se, but the drugand alcohol testing statuteprovides protections againstvarious claims and causes ofaction if a testing program isimplemented in accordance withits provisions.Requirements: To qualify forstatutory protection, employersmust establish and implement atesting program, and anyactions taken as a result of apositive test must be made ingood faith.Covered employers: Privateemployers.Citation: Utah Code § 34-38-1seq.





Coveredemployers


VT Applicant testing isauthorized withadvance writtennotice to theapplicant, but onlyafter conditionaloffer of employmenthas been made. Theemployer must giveapplicants a list ofdrugs to be testedfor and must statethat therapeuticlevels of prescribeddrugs won’t bereported.

Citation: 21 V.S.A. §512.

Generally prohibited. Employee testing is authorized as part of an employee assistance program or whenthere is probable cause for suspicion of substance abuse. Random testing is prohibited. An employer maysuspend an employee who tests positive for a period of rehabilitation (up to three months), but theemployer may not discharge an employee who agrees to rehabilitation after first positive test. Anemployee can be terminated if, after completing the program, he or she fails a drug test.

Citation: 21 V.S.A. § 513.

Testing is onlypermissible whenperformed by acertifiedlaboratory.Documentationshowing chain ofcustody,confirming testwith part oforiginal sample incase of positivefindings,opportunity tohave the resultsexplained to theemployee orapplicant, and anopportunity toretest a portion ofthe sample at anindependentlaboratory arerequired. Awritten testingpolicy is required.Any individualhealthcareinformation mustbe taken only bya medical reviewofficer and mustbe confidential.Citation: 21 V.S.A.§§ 514, 515, 516.

Medical use ofmarijuana isprotected if thepatient has avalid registrationcard. Nothing inthe state medicalmarijuana lawmay be construedto require anemployer toaccommodate


No program.





Coveredemployers


the medical useof marijuana inany workplace.Citation: 18 V.S.A.§§ 4472 et. seq.

VA No specificprovisions for jobapplicants, butlicensed home careorganizations andpublic contractorsare required tomaintain drug-freeworkplaces.Citation: VA Code §32.1-162.9:1;VA Code § 2.2-4312.

Licensed home care organizations, or any home care organization exempt from licensure, must establishpolicies for maintaining a drug-free workplace. Contractors must agree to provide a drug-free workplace forthe duration of the contract and to comply with notice and contract clause requirements.Citation: VA Code § 32.1-162.9:1; VA Code § 2.2-4312.

All positiveresults from drugtesting must bereported to thehome healthcareregulatory boardsresponsible forlicensing,certifying, orregistering theperson topractice.Citation: VA Code§ 32.1-162.9:1(B).

Homehealthcareorganizations.Statecontractors withover $10,000 incontracts.Citation:VA Code §32.1-162.9:1;§ 2.2-4312.

Incentives: No incentivesprogram, but a drug-freeworkplace is required in allcontracts with public bodiesworth more than $10,000.Requirements: Public bodiesmust include in every contractof over $10,000 the followingprovisions: Contractors must (1)provide a drug-free workplace,(2) post notice to employeesthat the unlawful manufactursale, distribution, dispensation,possession, or use of acontrolled substance ormarijuana is prohibited in thecontractor's workplace andspecifying the actions that willbe taken against employees forviolations of such prohibition, (3)state in all solicitations oradvertisements for employeesthat the contractor maintains adrug-free workplace, and (4)include the provisions of theforegoing clauses in everysubcontract or purchase order ofover $10,000, so that theprovisions will be binding uponeach subcontractor or vendorCovered employers: Publiccontractors.Citation: VA Code § 2.2-4312seq.





Coveredemployers


WA Medical Use ofMarijuana Act(MUMA) does notcreate liability forrefusing to hireapplicant who fails apost-offer,preemploymentdrug test allegedlydue to medical useof marijuana.Citation: Roe v.TeleTech CustomerCare Management,171 Wash. 2d 736(2011).

The MUMA and Washington Initiative I-502 do not require "any accommodation of any on-site medical useof cannabis in any place of employment" and that "employers may establish drug-free work policies.Nothing in this chapter requires an accommodation for the medical use of cannabis if an employer has adrug-free work place."Citation: RCW 69.51A.060. See also Rhodes v. URN Stores, Inc., 95 Wn App. 974 (1999) (drug-freeworkplace policy as BFOQ).Public employers:Wash. Admin. Code § 357-37-200.

Public employers:Wash. Admin.Code§ 357-37-200.

Publicemployers:Wash. Admin.Code§ 357-37-200.

N/A.





Coveredemployers


WV Yes.

Citation: W. Va. Code§ 21-3E-1 et. seq.

The Safer Workplaces Act passed in 2017 (W. Va. Code § 21-3E-1 et seq.), significantly expanded thecircumstances under which private employers may conduct drug and alcohol testing, but still containssome important limitations. Under the Act, employees and job applicants may be tested for the presenceof drugs and alcohol as a condition of continued employment or hiring, and authorizes drug testing for thefollowing reasons:

• Deterrence and/or detection of possible illicit drug use; possession, sale, conveyance,distribution or manufacture of illegal drugs, intoxicants, or controlled substances in any amountor in any manner, on or off the job; or the abuse of alcohol or prescription drugs;

• Investigation of possible individual employee impairment;• Investigation of workplace accidents, incidents of employee theft, or other employee

misconduct;• Maintenance of safety for employees, customers, clients, or the public at large; or• Maintenance of productivity, quality of products or services, or security or information.

The new law is not without limitations, however:

• The employer must have a written policy related to testing (for applicants and currentemployees) before it tests employees or applicants;

• The employer may not take any adverse employment action before a confirmatory drug test, byan approved laboratory, has come back positive;

• The employer bears the cost of the testing, including payment to the employee for the timespent having the testing complete and transportation to the testing site, if necessary;

• The employee must be given the opportunity to provide information which might bear upon theresults of the test (i.e. prescription drug information);

• Employer must provide employee information on any resources made available to employees bythe employer upon request; and

• The employer must not use or disclose communications relevant to an individual’s test resultsexpect in a proceeding related to the Act.

Public-improvementcontractors and their subcontractors are required to implement and maintain a drug-free workplace program. West VirginiaAlcohol and Drug- Free Workplace Act, W. Va. Code §§21-1D-1, et seq.

Coal mine operators are also required to implement a substance abuse screening policy and program.W.Va. Code § 22A-1A-1 et seq.

Any employeewho attempts topass a drug testby using anotherindividual’ssample or whoadds anything toa sample to makeit impure is guiltyof amisdemeanor.Anyone whopossesses, sells,or advertises forthe sale ordistribution ofany product topass drug andalcohol tests isguilty of amisdemeanor.The penaltiesinclude a fine ofup to $1,000 for afirst offense, afine of up to$5,000 for asecond offense,and a fine of upto $10,000 plusup to one year ofimprisonment forthird andsubsequentoffenses. W. Va.Code §60A-4-412.

Public-improvementcontractors andtheirsubcontractorsare required toimplement andmaintain a drug-free workplaceprogram. West

Privateemployers andpublic-improvementcontractors withcontractsvalued at$100,000 ormore.

Incentives: A reduction inworkers’ compensationpremiums may be granted foremployers who successfullycomplete a loss-preventionprogram that includes theestablishment of a drug-freeworkplace.

Covered employers: Privateemployers.

Citation: W. Va. Code §23-2-4(a)(2)(B).





Coveredemployers


Virginia Alcoholand Drug-FreeWorkplace Act, W.Va. Code §§21-1D-1, et seq.





Coveredemployers


WI Wisconsin has nolaw that expresslyregulates substance-abuse testing.Section 103.53(3)requires substanceabuse programs,including random,reasonablesuspicion, and post-accident drugtesting, except forthose employersperforming work onpublic projects. Ofcourse, federal lawsincluding the DrugFree Workplace Act,Department ofTransportation rules,and Department ofDefense rules applyregarding alcoholand drug testing inthe workplace. If anemployer intends totest employees foralcohol or drugs, theemployee handbookshould so advise.For unionizedemployees, testinghas been held to bea mandatory subjectof bargaining.Alcohol addiction isconsidered adisability underWisconsin law, so anemployer may havea duty to reasonablyaccommodate anapplicant oremployee who testspositive or admits toalcohol addiction.Currently, the


Employersperforming workon publicprojects.

No program.





Coveredemployers


Wisconsin Labor &Industry ReviewCommission doesnot recognize hairsamples for drugtesting. Accordingly,it is currentlyunlikely that anemployer canchallengeunemploymentcompensation toemployeesterminated fortesting positive fordrugs using a hairsample.Citation: Wis. Stat. §103.503.





Coveredemployers


WY The state doesn'tregulate drug/alcohol testing, butthe question ofreasonableness ofemployer testinghas been addressedin federal and statecourt, primarily inwrongful terminationand invasion ofprivacy cases. InEmployment Sec.Comm'n v. WesternGas Processors, Ltd.,786 P.2d 866 (Wyo.1990), an employeefiled a claim forunemploymentbenefits afterquitting rather thansubmitting to a urinedrug test. that theemployee had beenconstructivelydischarged and wasentitled tounemploymentcompensation. Thecourt also ruled thatunder thecircumstances thedemand to submit tothe test wasunreasonable. InWyoming Dep't ofEmployment v.Rissler & McMurryCo., 837 P.2d 686(Wyo. 1992), thecourt didn't addressthe reasonablenessof the employer'sdrug/alcohol testingpolicy because theemployer didn'tfollow its policy in



No program.





Coveredemployers


requiring theemployee to submitto the test. Thecourt held that,where a drug/alcohol test is not inaccordance with theemployer'sestablished policy,an employee'srefusal to take thetest is notmisconduct that willdisqualify him fromunemploymentcompensation. InGreco v. HalliburtonCompany, 674 F.Supp. 1447 (D. Wyo.1987), the federalcourt ruled thaturine analysis testsrequired by anemployer don'tviolate public policyagainst invasions ofprivacy. Finally, inDuncan v. Afton,Inc., 991 P.2d 739(Wyo 1999), theemployer's conductwas not directlyaddressed, but thecourt held that thecollection companyowed a duty of careto the employeewhen collecting,handling, andprocessing theemployee's urinesample for thepurpose ofperformingsubstance-abusetesting.The Wyoming





Coveredemployers


Supreme Court heldemployers mayreceive a discounton workers'compensationpremiums byparticipating in adrug and alcoholtesting programapproved by theWyoming Workers'Safety andCompensationDivision. Wyo. Stat.§ 27-14-201(o);Department ofEmployment,Workers'CompensationDivision Rules andRegulations, Chapter2, Section 8.



Documents

DRUG AND TESTING - BLRinteractive.blr.com/Global/FileLib/Drug_Testing_Seminar/... · 2017-09-19 · Drug and Alcohol Testing-Does your state regulate drug and alcohol testing?State