Avoiding discrimination during pre-hire testing

• Employers must be aware of potential discrimination issues that are linked to drug and alcohol testing.
• The ADA prohibits testing individuals for alcohol before a job offer is made.
• Because of ADA restrictions on medical inquiries, it is most practical to conduct drug tests after a job offer is made.

An employer�s substance abuse policy and drug and alcohol testing must comply with federal and state regulations. These include laws relating to discrimination, retaliation, and job-protected leave. An employer must make sure to respect an employee�s rights when:

• Conducting a test,
• Inquiring about use of drugs or alcohol,
• An employee or job candidate is in recovery from substance abuse.

In addition, state drug testing and marijuana laws may have anti-discrimination provisions that must be taken into consideration.

When conducting pre-hire drug and alcohol tests, employers must respect employee rights. Testing must not be conducted in a discriminatory manner.

Testing some applicants but not others, or testing them at different stages in the hiring process, could bring about a discrimination claim. Singling out only certain people for a drug test before offering them a job is risky, as it may look like the company is discriminating against these individuals based on their age, sex, race, or religion.

The hiring process has several stages: the application stage, interview stage, and post-offer stage. The Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees, restricts medical exams to the post-offer stage. A test for alcohol is a medical exam and cannot be given until a job offer has been made.

Drug tests are also typically conducted at the post-offer stage. If a drug test is positive, an employer may ask about lawful drug use that may have brought about the positive test. An employer may validate the test results by asking about lawful use drug use as a possible explanation for the positive test result.

Asking about failed drug tests

An employer may ask a job candidate about past illegal drug use, and may inform applicants of company policy to conduct pre-employment drug testing, but should be careful when asking about past failed tests.

As a best practice, the question should only be asked if it relates to the job the individual is applying for. Rejecting an applicant for a past failed drug test risks a discrimination claim, because the person may be in recovery and protected by the ADA.

For example, it would be risky to ask people applying for a janitorial position about whether the individual has ever failed a drug test for marijuana. A past failed drug test would not likely relate to job requirements and rejecting the person for a job would be problematic if the person is in recovery from drug addiction.

In addition, do not ask about failed drug tests on a job application unless the question is required by Department of Transportation (DOT) regulations or another law.

Who needs to be tested?

Employers can determine which candidates to test based on the job duties or requirements of the position the candidate is applying for. While it is best to test all candidates for a position at the same point in the process to avoid discrimination issues, employers do not necessarily need to test all applicants for all jobs. Employers could choose to test only those who are applying for a job in the same job category.

For example, a drug test might be given to applicants who will be driving a forklift, but not to employees entering clerical jobs. Employers can decide to test all candidates, or to test only those in certain job categories.

Employers may also need to test based on federal requirements if the job is for a safety-sensitive position, such as a driving position that falls under federal Department of Transportation (DOT) requirements.

Accommodations during the drug testing process

A person with a disability may require an accommodation for the way a drug test is conducted. An accommodation may need to be made if a person cannot take a drug or alcohol test because of a medical condition.

For example, an accommodation should be considered if a person cannot provide a urine sample because of a kidney condition.

The employer should discuss the matter with the employee or applicant to see if an alternative test (such as a hair test) is an option.

Discrimination issues relating to marijuana use

Some state marijuana laws contain anti-discrimination provisions, or link a marijuana law to a state anti-discrimination law.

If an individual has a medical marijuana card, in some states it could be problematic to deny an applicant the opportunity to take a drug test or deny employment based on an assumption that the person would fail the drug test. That could violate the anti-discrimination provisions of a state medical marijuana law.

In addition, other state medical marijuana laws have accommodation provisions that must be considered. In those states, an applicant should not be rejected until an employer has considered whether the applicant�s use of medical marijuana poses problems in the workplace.

Illegal drug use not protected

Someone who currently uses drugs illegally is not protected under the ADA. During the hiring process, a company may ask job applicants about their current illegal use of drugs. Questions may involve illegal drugs (cocaine, crack, heroin) and the illegal use of prescription drugs.

An applicant may be rejected on the basis of current use of illegal drugs, and an employer may take action because of an employee�s use of illegal drugs.

Protections for individuals in recovery

• People in recovery from drug or alcohol abuse are protected by federal and state laws
• Employers cannot discriminate against those in recovery
• Employers may need to alter schedules or provide time off for treatment

Individuals in recovery from drug or alcohol addiction are protected by the Americans with Disabilities Act (ADA) and state laws. An employer needs to provide a reasonable accommodation to an employee as long as doing so does not place an undue hardship on the company.

An accommodation could include:

• An adjustment to a work schedule to allow the employee to attend recovery group meetings.
• Lifting a restriction on personal phone calls during work time to allow an employee to call an Alcoholics Anonymous sponsor.

People in recovery should not be disqualified from a job because they are in recovery. Rejecting a person for a job because that person is in recovery would be discriminatory.

If a job would not be appropriate for a person in recovery, the reason for denying employment would need to be job-related and consistent with business necessity. A company would need to show that the individual poses a direct threat (that there is a significant risk of substantial harm) to the health or safety of the individual or others.

In addition, the employer would need to show that there is no reasonable accommodation that can be made to allow the person to do the job.

Job-protected leave for recovery

An employee�s time off to attend a substance abuse recovery program could be a reasonable accommodation under the ADA.

Leave may also be eligible for job-protected leave under the Family and Medical Leave Act (FMLA). The FMLA, which applies to employers with more than 50 employees, requires employers to provide up to 12 weeks of job-protected leave in a 12-month period to qualified employees.

An employee�s leave for substance abuse treatment would be covered by the FMLA if treatment is provided by:

• A health care provider, or
• A health care services provider referred by the health care provider.

When an eligible employee returns from FMLA leave, the employee must be given the same job or an equivalent position. If, for example, an employee is returned to a less desirable shift, a position at a different location, or a job that that does not offer the same opportunity for overtime, an employee could claim that the company retaliated against the employee for taking time off under the FMLA.

Drug testing

• It is lawful for employers to set up a drug testing program that fits its workplace needs, but state and federal laws must be considered.
• Federal and state laws impact the timing of drug tests and the consequences of a positive test.
• It is lawful for employers to drug test employees before and during employment in accordance with any applicable regulations.

When conducting a drug test, federal and state laws must be considered. These include laws relating to when and how a drug test is conducted and the consequences of a positive test.

These federal laws impact drug testing:

State laws may also make an impact on when and how a drug test is conducted. Some state laws limit random tests, require a specific drug testing panel to be used, limit-on-site testing, or restrict drug testing in another way. See the State Laws section for specific requirements. Tests for alcohol are considered a medical exam under the Americans with Disabilities Act (ADA) and have their own requirements.

When to test

An employer may conduct drug tests at various times before a person is hired and during employment. A workplace drug testing program may include these types of tests:

• Pre-employment: A test typically given after a job offer is made but before a person is hired.
• Random: An unannounced test given to a randomly selected group of people.
• Reasonable suspicion: A test given when an individual is suspected of being under the influence of drugs or alcohol.
• Post-accident: A test conducted after a workplace accident to help determine the root cause of the accident.
• Return-to-duty: Testing conducted randomly after a person completes a drug or alcohol rehabilitation program.

Alcohol testing

• Employers must comply with ADA guidelines when testing a person for alcohol.
• Under the ADA, a test for alcohol is considered a medical exam.
• A test for alcohol can only be completed after an offer of employment is made or if there is a safety concern.

A workplace test for alcohol is more tightly regulated under federal law than a test for drugs. This is because a test for alcohol is considered a medical exam under the Americans with Disabilities Act (ADA). From an ADA point of view, a medical exam is a procedure or test that seeks information about an individual�s physical or mental impairments or health. This includes blood, urine, and breath analyses to check for alcohol use.

A medical exam can only be given at certain times in the hiring process and during employment, such as:

• After an offer is made: A medical exam can be conducted after an offer of employment has been made but before an employee begins work.
• If there is a safety concern: A medical exam can also be conducted during employment if the employer has reason to believe that the employee would not be able to perform a job successfully or safely because of a medical concern.

Because of these restrictions, a test for alcohol should only be conducted:

• After a job offer is made,
• When alcohol use is suspected, or
• If an employee in a safety-sensitive position is returning to work after attending a rehabilitation program for alcohol addiction.

A medical exam may NOT be given at the application stage. An employer may not ask a job applicant to answer medical questions or take a medical exam before making a job offer. Because of this, job applicants should not be routinely tested for alcohol. A test for alcohol could be conducted after a job offer is made, if the employer would like.

Marijuana

• Employers can prohibit possession, use, or being under the influence of marijuana at work.
• Employers should check state laws before taking action against a person with a medical marijuana card or positive marijuana test.

A significant area of concern for employers is how to handle employee marijuana use. New state laws and changing attitudes toward the drug are raising questions about how to deal with marijuana as part of a workplace drug and alcohol policy.

One myth is that in states where marijuana has been legalized, it�s impossible to have a drug-free workplace. The truth is that while some state laws do include worker protections for medical or recreational marijuana users, employers can establish a drug-free workplace policy. The best course of action is to become familiar with the applicable marijuana laws in states where the company has employees.

Employers are not powerless. None of the current marijuana laws permit employees to possess or use marijuana at work, or work while under the influence of marijuana. Regulating marijuana use in the workplace is within the rights of employers in every state.

In states where marijuana is legal, employers do have additional considerations. An employer should pause and check state laws before firing, not hiring, or taking another negative employment action against a person who has a medical marijuana card or who tests positive for marijuana.

A state marijuana law might:

• Prohibit discrimination,
• Require an accommodation to be considered, or
• Not allow a positive test to be proof that an employee is under the influence of marijuana.

While marijuana is legal for medical or recreational use in many states, it is still illegal under federal law. It is classified as a Schedule 1 drug under the Controlled Substances Act, the same class as heroin and LSD, with no accepted medical use and high potential for abuse. If a company has employees who are required to follow Department of Transportation (DOT) regulations, the employees absolutely cannot use marijuana, as there are consequences if employees test positive.

Yet, many states have legalized the drug for recreational or medical use. Some people support its medicinal properties and see it as an alternative to opioids. States see marijuana sales as a source of tax revenue, and it�s also a social justice issue.

Why states have legalized marijuana

In 2013, the Cole memorandum was issued. In the memorandum, the deputy attorney general offered guidance to states on marijuana laws. Under the memorandum the federal government:

• Allowed states to regulate small amounts of marijuana on private property, and
• Gave states leeway to enforce their own marijuana laws outside of the federal government�s primary enforcement efforts.

This resulted in the continued legalization of marijuana under state laws. Although the memorandum was rescinded in 2018, very little has changed, and there are efforts in Congress to legalize marijuana nationally. Although marijuana legalization legislation has not gained enough traction to become law, the push for national legalization continues to gain momentum.

A workplace marijuana policy

Each state law is a little different, but in general employers do not need to allow the drug to be used on the job or in the workplace. An employee does not need to be allowed to smoke marijuana in the break room, for example.

In addition, employers do not need to accept the use of marijuana as a reason to allow an employee to be impaired at work. If an employee is impaired at work, employers can and should take action.

Employers can follow federal drug testing regulations when this is required. If employers have drivers who are covered by Department of Transportation (DOT) drug testing regulations, the company must continue to test under the DOT regulations. Drivers who test positive for marijuana need to be removed from a safety-sensitive position.

In states where recreational or medical marijuana is legal, employers should follow state requirements relating to off-duty marijuana use, drug testing, and the use of a drug test to prove impairment from marijuana. Some state laws contain protections for off-duty medical or recreational marijuana use, so those laws should be considered before taking a negative employment action based on marijuana use or a positive drug test for marijuana.

Marijuana and DOT regulations

Drivers regulated under the Department of Transportation are not allowed to use marijuana and face consequences for a positive test.

See the �Marijuana use� section in the DOT drug testing topic.

Issues with CBD products

• Using CBD products may cause an employee�s drug test to be positive.
• Use of CBD is not an excuse for a positive drug test, unless it is in a prescription medication.
• Employers should address their stance on THC and CBD in a written policy.

Marijuana contains more than 100 cannabinoids, or chemical compounds that alter receptors in the brain. The primary cannabinoid in marijuana that causes the high is tetrahydrocannabinol (THC). However, marijuana also contains cannabidiol (CBD), which does not have psychoactive properties.

CBD is also found in hemp. Both marijuana and hemp are names for the cannabis sativa plant; under the 2018 Agriculture Improvement Act (Farm Bill), hemp must have a concentration of THC that is no higher than .3 percent. CBD products made from hemp contain very low levels of THC and should not cause a person to feel high. A CBD product made from marijuana, however, could contain higher levels of THC.

Since CBD does not have psychoactive properties, many people assume CBD products are safe to use and therefore should be allowed in the workplace.

However, because extraction processes and product labeling are not well regulated, it is possible that a product labeled �CBD� could contain trace amounts of THC. In fact, a 2017 study by the University of Pennsylvania School of Medicine found that 1 in 5 CBD products tested did contain THC.

If a CBD product contains THC, this could bring about a positive drug test. Employers may need to educate employees and let them know that use of a CBD product is not an excuse for a positive test for THC.

If an employee tests positive for THC after using a CBD product, an employer does not need to make an exception to its substance abuse policy. Consider how any positive test for THC is treated:

• If marijuana is illegal in the state where the test is conducted, a positive test for THC is a positive test for an illegal drug.
• If the state where the test is conducted has a medical or recreational marijuana law, consider what the state law says regarding a positive THC test.

To make sure employees are aware of the workplace implications of CBD use, employers should address their stance on THC and CBD in a written policy in the employee handbook. This helps employees understand their rights and responsibilities.

Accommodations for CBD use

If an employee is taking CBD for medical purposes, the employer should discuss the situation with the employee. The employee should be aware that use of a CBD product could bring about a positive drug test for THC.

The Americans with Disabilities Act (ADA) does not require employers to accommodate the use of THC, no matter how small the dosage, even when it is in a legal CBD product. Under the ADA, an employer does not need to accommodate the employee�s medical condition by excusing a positive drug test.

The employer would, however, need to consider other accommodations for the employee�s medical condition. In addition, an employer in a state with legal medical marijuana should consider state medical marijuana and discrimination laws when taking off-duty THC use into account.

The Food and Drug Administration has approved one drug containing CBD for treatment of seizures (Epidiolex). If an employee is taking this CBD-based medication, it would be treated as any other prescription medication is treated.

Background checks and marijuana convictions

• Employers should consider job duties when determining whether to take marijuana-related convictions into account when hiring
• Job duties impact whether a company chooses to test for marijuana use before hiring.
• Job candidates should be aware of a company�s drug and alcohol policy.

When hiring, employers often conduct background checks. These checks may turn up information about a conviction for a marijuana-related offense. Employers should take job duties and other factors into account when determining whether marijuana-related convictions are a reason to turn away a job applicant.

Federal or state law may dictate what a background check needs to entail, and what must be considered. If laws don�t apply, employers can consider these items, based the federal government�s hiring practices, when deciding whether a marijuana-related offense should make an impact on the hiring decision:

• Is the conviction pertinent to the position?
• What happened, how serious was it, and how long ago did the conviction occur?
• Were there contributing factors?
• Were there contributing societal conditions?
• What type of efforts has the job candidate made toward rehabilitation?

Pre-employment tests for marijuana

Employers often conduct pre-employment drug tests to deter drug use by job candidates. In states where medical and recreational marijuana is legal, it can be difficult to find candidates who can pass a pre-employment drug test. In addition, state or local law may not allow an employer to refuse to hire an employee who tests positive for marijuana.

Because of this, an employer may choose to remove marijuana from the pre-employment drug testing panel. This is allowed, unless state or federal law dictates otherwise.

When deciding whether or not to remove marijuana from the pre-employment drug testing panel, an employer should consider:

• Federal laws. Employees in safety-sensitive jobs regulated by the Department of Transportation (DOT) or another federal agency need to be tested under federal regulations. A panel that includes marijuana must be used.
• State laws. A state law may require a specific drug testing panel to be used.
• Job duties. If the position involves working at a desk all day, a test for marijuana may not be needed. If the employee will be driving, the company might want to include marijuana in the drug test.

A company that does not do a pre-employment drug test for marijuana can still require prospective employees to pass a drug test that checks for use of other illegal drugs.

Make job candidates aware of company policy

After a candidate is hired, the candidate can be expected to adhere to the company�s drug and alcohol policy. In all states employers can prohibit:

• Marijuana use in the workplace,
• Marijuana possession in the workplace, and
• Impairment from marijuana use during work hours.

Make sure all job candidates and employees are aware of company policy and expectations.

Drug-Free Workplace Act requirements

• Some companies with federal contracts or grants are required to have a drug-free workplace.
• Federal contractors with a contract of $100,000 or more and all federal grantees must comply with the Drug-Free Workplace Act of 1988.

Any employer can have a drug-free workplace policy and can prohibit employees from using, selling, or producing drugs on company property. Some companies with federal contracts or grants are required to have a drug-free workplace under the Drug-Free Workplace Act of 1988. The act includes policy, education, and notification requirements.

Who must comply with the Drug-Free Workplace Act?

The Drug-Free Workplace Act of 1988 applies to federal contractors with a contract of $100,000 or more and all federal grantees.

What are the requirements of the Drug-Free Workplace Act?

Employers who are required to comply with the Drug-Free Workplace Act of 1988 must prohibit employees from using, selling, or producing drugs on company property.

Employers also need to publish a drug-free workplace statement and provide the statement to employees. The statement needs to notify employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace. It must also specify the actions that will be taken against employees who violate the policy.

Awareness program

An employer covered by the Drug-Free Workplace Act of 1988 also needs to establish a drug-free awareness program for employees. The program must include information about:

• The dangers of drug abuse in the workplace;
• The company�s policy of maintaining a drug-free workplace;
• Any available drug counseling, rehabilitation, and employee assistance programs; and
• The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace.

Convictions for drug violations

Employees convicted of violating drug statues in the workplace must notify the employer of the conviction in writing within five days.

Within 10 days of receiving this information, or another notice of an employee�s conviction, employers must notify the federal contracting agency of the criminal drug violation.

Drug testing

The Drug-Free Workplace Act of 1988 does not require drug testing, but also does not prohibit it. Employers who are required to comply with the act may conduct drug tests if desired.

Consequences of policy violations

A contractor complying with the act is not required to terminate an employee who violates the company�s substance policy. Termination could be a consequence of failing to follow the policy, but it does not need to be the only consequence. Those who violate the policy could:

• Face suspension,
• Be required to attend a drug abuse assistance or rehabilitation program, or
• Be terminated.

Employee assistance programs

Employers who need to comply with the Drug-Free Workplace Act of 1988 are required to notify employees of any drug counseling, rehabilitation, and employee assistance programs that are available.

The act does not require an employer to offer a specific program or level of service, or to pay for substance abuse treatment. It simply requires employers to make information about treatment services available as part of its ongoing drug-free awareness program.

Substance abuse

• Employers can prohibit substance use at work and on work time.
• Companies are advised to have a company policy on substance abuse.
• Employees should agree to the policy in writing.

In the interest of safety and productivity, workers can be expected to be sober when arriving at work and remain that way while on the job. Workers can be made aware of this expectation in the company�s substance abuse or drug and alcohol policy.

Why have a workplace substance abuse policy?

A workplace substance abuse policy makes workers aware of company expectations and restrictions on substance use, so having this policy is recommended for all employers. While it is generally not a requirement to have a substance abuse or drug and alcohol policy if an employer does not fall under regulations for safety-sensitive industries (such as the transportation industry), it is a best practice to have one.

A company�s substance abuse or drug and alcohol policy is important because:

• It is a valuable resource for supervisors and managers, as it documents a company�s stance on substance abuse and can be a valuable resource if employees have questions.
• It describes prohibited behavior and the consequences for policy violations. This helps ensure the company�s workplace drug and alcohol rules are applied uniformly and in a non-discriminatory manner.
• It describes what rises to the level of unacceptable workplace conduct, which can be important if the employer is challenging an unemployment insurance claim.
• It may be required under a state drug testing law.

Employee acknowledgment

To make sure that employees are aware of company policy, the policy should be given to employees or included in the company handbook.

Employees should sign a statement acknowledging that they agree to follow the policy.

Considerations regarding opioids

• The ADA protects people who are legally taking opioid medication as prescribed.
• Employer requirements and accommodations for employees undergoing opioid addiction treatment vary.

Opioids are a class of drugs that include illegal drugs as well as pain relievers available legally by prescription. Because an opioid can be an illegal drug or a legally prescribed medication, an employer needs to approach employee opioid use with caution.

Opioids include prescription drugs such as:

• Codeine,
• Morphine,
• Oxycodone (which includes brands such as OxyContin, Percodan, and Percocet),
• Hydrocodone (which includes brands such as Vicodin, Lortab, and Lorcet), and
• Meperidine (which includes the brand Demerol).

The term �opioids� also includes illegal drugs like heroin.

In addition, opioid drugs can be prescribed to treat opioid addiction in a Medication Assisted Treatment (MAT) program. These include buprenorphine (which goes by the brand names Suboxone or Subutex) and methadone.

While an employer never needs to accommodate the use of illegal drugs, an employee who is legally using an opioid medication is likely protected by the Americans with Disabilities Act (ADA). If an applicant or employee�s drug test is positive for opioids, pause before taking action. Quickly firing or refusing to hire based on opioid use would be risky.

An employee who is legally using opioids can�t automatically be disqualified from a job. An employer should give an employee subject to drug testing an opportunity to provide information about lawful drug use that may cause a drug test result that shows opioid use. If there are concerns that an employee�s legal opioid use, history of opioid use, or treatment for opioid addiction would interfere with safe and effective job performance, consider whether there is a reasonable accommodation that resolves the concerns.

This might mean a change at work such as a:

• Different break or work schedule (scheduling around treatment),
• New shift assignment, or
• Temporary transfer to another position.

An employee in treatment for addiction or who is in recovery from addiction may need:

• Time away from work to attend therapy or support group sessions,
• An altered schedule to attend a support group meeting or therapy, or
• An extended leave of absence for treatment or recovery.

An employer does not need to:

• Lower performance standards,
• Eliminate essential functions or fundamental duties of a job,
• Pay for work not performed, or
• Excuse illegal drug use on the job.

Understanding reasonable accommodation

If a reasonable accommodation needs to be considered, an employer can get additional information from the employee�s healthcare provider. The medical professional should not provide vague restrictions, such as �no operating heavy machinery.�

Instead, the medical provider should describe relevant medical events that could occur (like loss of consciousness or nausea), and state the probability that they will occur. The medical professional should consider any risks the patient�s condition may present to the employee�s day-to-day work. In addition, the medical professional can describe safety precautions that would reduce the chances of a medical event occurring.

An employer must provide a reasonable accommodation if it would allow the employee to perform the job safely and effectively and does not involve significant difficulty or expense. If there is more than one option, an employer can choose which accommodation to provide.

Employers are required to keep all information related to reasonable accommodation requests confidential.

Illegal use not protected

While an employee who is legally using opioids is protected by the ADA, the law does not protect an employee�s illegal use of opioids. Current illegal drug use is not a covered disability under the ADA.

An employee who is using opioids illegally could face consequences. The ADA allows an employer to fire an employee or take other employment actions based on illegal use of opioids, even if the employee does not have other performance or safety problems.

Employee assistance programs

• A company can help employees solve personal and workplace problems with assistance from an EAP.
• Encouraging the use of EAP services to address a personal problem before it becomes unmanageable can help prevent an employee from turning to alcohol or illegal drug use to cope.

Professional assistance and counseling services are offered through an employee assistance program (EAP). An EAP often offers services that can help an employee cope with an array of personal problems impacting work performance. These can include support relating to marital, financial, family, or emotional issues as well as programs designed to curtail substance abuse.

These issues can impact productivity, performance, and turnover. Providing employees with resources for dealing with these challenges can help make the workplace safer and more productive and improve overall employee well-being.

Many companies provide special considerations for individuals who voluntarily come forward, admit to a substance abuse problem, and seek assistance. These services can also be used by employees who have tested positive for alcohol or illegal drugs and are required to complete a substance misuse evaluation and treatment program.

The availability of help and contact information for the EAP should be regularly announced to the workforce.

Who pays for rehabilitation programs?

Employees who become addicted to drugs or alcohol can benefit from treatment programs that support recovery and lead them to resume a productive life.

Federal and state regulations do not require employers pay for rehabilitation and treatment programs. However, rehabilitation and treatment programs are often an integral part of an individual's recovery.

Usually, the company�s EAP counselor develops a treatment program that best meets the needs of the employee in a cost-effective manner.

Last chance agreements

• When an employee violates a company�s substance abuse policy, a last-chance agreement may be offered.
• Under ADA regulations, employers must provide employees in recovery with reasonable accommodations such as flexibility to attend recovery group meetings.
• If an employee is absent from work for rehabilitation, do not discuss this with other workers.

A last chance agreement, sometimes called a �firm choice� agreement, gives an employee who is in recovery from substance addiction the opportunity to keep a job in exchange for agreeing to meet certain conditions. An employee�s job is often contingent upon successful completion of a substance abuse treatment program. The consequence for violating the last-chance agreement is usually termination.

The employer can work with the program provider to determine how to best support the employee�s sobriety. This may include developing a return-to-work agreement with a number of unannounced drug or alcohol tests conducted in compliance with state and federal laws.

This type of agreement can help an employer keep a valuable employee while making the employee aware of the consequences of another policy violation. As every situation is different, employers may wish to check with legal counsel to address the details of the agreement.

The agreement often includes:

• A summary of the violations or progressive discipline the employee received;
• What an employee must do to remain employed, including successful completion of a recovery program and passing regular drug/alcohol tests;
• The consequences for violation of the agreement; and
• The date of the agreement, the expiration date of the agreement, and signatures.

Although random drug and alcohol testing may be restricted by state laws or privacy provisions of a state constitution, random tests may be allowed under a last-chance agreement.

Avoiding discrimination

If a last-chance agreement is offered to employees, an employer should make sure it is offered consistently to lower the risk for a discrimination claim.

If the employer decides to offer the agreement to some employees but not others, document the reason for the selection. It could be based on years of service, the employee�s position, or another non-discriminatory factor (which doesn�t involve an employee�s age, race, religion, or sex, for example).

Keeping treatment information confidential

Coworkers may be curious about an employee�s absence while the worker is attending a treatment program, but the ADA�s confidentiality provisions do not allow employers to discuss the situation with them.

The ADA requires employers to keep all employee medical information confidential except in situations where employees have a business need to know the information.

If questions from coworkers arise about an individual�s accommodation for substance abuse treatment, managers should be trained to respond in a way that respects the employee�s privacy and complies with the ADA�s confidentiality provisions.

Coworkers may wonder if the employee is getting special treatment or whether the individual is meeting work standards. A supervisor can reassure coworkers that the employee is meeting work requirements. In addition, the supervisor can state that one employee�s situation cannot be discussed with others to protect the privacy of all employees.

Leave for treatment

• Per the ADA, employers are required to accommodate employees in substance abuse recovery or treatment.
• An employee may be able to take leave for substance abuse treatment under the Family and Medical Leave Act (FMLA)

An employee who is in recovery, or who needs to take time off to attend a substance abuse recovery or treatment program, is protected by the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA).

ADA protections

Under the ADA, an employer needs to consider accommodations for an employee who is undergoing substance abuse treatment or is in recovery.

For example, an employee may request a leave of absence to attend a treatment program or may require a schedule adjustment to attend a recovery group meeting. A company with a rule prohibiting personal phone calls at work may need to make an exception to that rule for an employee who needs to call an AA sponsor.

When a request is made, the employer needs to consider it as it would any other ADA accommodation. An employer needs to provide a reasonable accommodation to an employee as long as doing so does not place an undue hardship on the company.

An employer does not need to allow an employee to drink on the job or miss work because of alcohol- or drug-related issues as a reasonable accommodation, but it may need to consider an accommodation request to support the sobriety of a person in recovery.

Training for employees and supervisors

• Laws and the needs of the workplace impact the level of substance abuse training offered by a company.
• DOT drivers must receive substance abuse training and education.
• Some state laws require substance abuse training and education.
• Contractors covered by the Drug-Free Workplace Act of 1988 need to establish a drug-free awareness program

Training provides employees and supervisors with important information about the impact of substance abuse. It gives employers an opportunity to make everyone aware of the company substance abuse policy and the opportunity for rehabilitation services. It provides supervisors with the skills they need to identify individuals who are under the influence of drugs or alcohol and an understanding of what to do when an individual is impaired by drug or alcohol use.

In some cases, training is required. In others, it is voluntary. The level of training provided will be dictated by state and federal laws and the needs of the workplace.

Pre-employment drug tests

• Pre-employment tests give employers the opportunity to test for illegal drug use before an employee begins work.
• Employers should drug test all applicants equally to avoid discrimination.

Pre-employment drug testing is done before an employee begins work or soon after the employee�s first day on the job. Because the employer has not yet had the opportunity to see the employee at work and potentially spot any signs of substance abuse, a pre-employment test is given to detect illegal drug use.

As with all company policies, a pre-employment drug testing policy must be implemented fairly and consistently, in a manner that does not conflict with any federal, state, or local civil rights or workers� rights laws.

Discrimination: To avoid discrimination issues, employers should test all candidates for a position at the same point in the hiring process. A drug test is typically conducted after a conditional job offer is made.

See the section �Avoiding discrimination during pre-hire testing.�

Marijuana: Employers can usually determine which panel of drugs to include in a pre-employment test, but some states do not allow pre-employment testing for marijuana. A law banning pre-employment drug testing for marijuana does not mean that an employer needs to stop doing pre-employment drug testing altogether, however. Even when marijuana testing is not allowed, an employer can still use a pre-employment testing panel that tests for illegal drugs but does not test for marijuana.

Random drug tests

• Consider business needs in addition to federal and state regulations when creating policies on random drug tests.
• State random drug testing guidelines vary.
• State laws may limit random testing to high-risk or safety-sensitive occupations.

Random tests aid employers in identifying employees who are engaging in drug use or alcohol misuse that may have otherwise gone undetected. An employee can expect to be tested at any time, and the uncertainty of when a test will be given means an employee cannot simply abstain for a short period of time in order to pass a test. An employee needs to come to work each day free from the influence of alcohol or illegal drugs or risk the consequences.

There is no requirement to administer random drug or alcohol tests to non-U.S. Department of Transportation (DOT) employees. A company needs to consider state laws when determining whether random tests are allowed. When random testing is allowed, employers may set up a testing program that meets its workplace needs.

In some states, random testing is limited to safety-sensitive positions. These states include California, Connecticut, Maine, Massachusetts, Minnesota, Montana, and New Jersey. In these states, the need to do a drug test because of the safety-sensitive nature of a person�s job must be balanced with the individual�s right to privacy. If an individual�s life or the lives of others are at risk if the individual were impaired by drugs or alcohol, a random test would likely be warranted in the interest of public safety. The details of the state law must be considered, however.

There is no universal list of jobs that are safety-sensitive. Some states that restrict random tests are very specific about which jobs fall under this umbrella, while other states offer more general guidelines.

In Connecticut, a high-risk or safety-sensitive occupation is defined by state law. It includes jobs where an employer does not have the ability to observe an employee�s impairment, and also includes an occupation that:

• Presents a clearly significant life-threatening danger to the employee, fellow employees, or the general public and is performed in a manner or place inherent with or inseparable from such danger; and
• Requires the exercise of discriminating judgment or high degree of care and caution.

Connecticut's labor commissioner maintains a list of occupations designated as high-risk or safety-sensitive. The list includes hundreds of occupations, ranging from advanced climber/trimmer-trainee (for power line clearance) to yardman (working with hazardous waste materials).

Other states are not as specific. In Maine, for example, the law does not define �safety-sensitive.� All drug testing policies must be approved by the state, however, and an employer wishing to conduct random tests must describe in its policy why a job is deemed to be safety-sensitive.

Because of differences in the way states address random testing, employers in states where random testing is regulated should look to their state laws before setting up a random testing pool for employees.

Reasonable suspicion drug tests

• Reasonable suspicion drug tests can help protect the company and its workforce.
• A reasonable suspicion drug testing policy lets employees know up front that they need to be accountable for all actions.
• Supervisors need to document an employee�s unusual patterns or unsafe behaviors to justify a reasonable suspicion drug test.

What if an employee is suspected of being under the influence of drugs and/or alcohol? What recourse does the employer have?

Any employee may be tested when a supervisor has reasonable suspicion that the employee is impaired by alcohol or drug use. A state law may limit an employer's ability to test for marijuana, but even in these states an employer may still test for other drugs or alcohol.

These tests can help protect the safety, productivity, and well-being of the workforce. The importance of reasonable suspicion testing (also called for-cause testing) is underscored by the negative impacts substance abuse makes on the workplace. It can lead to:

• Workplace accidents. Substance abuse can bring lapses in safety.
• Lower productivity. The entire organization suffers when substance abuse hampers a person�s ability to properly do a job.
• Decreased morale. Other workers may resent having to make up for the abuser�s impaired ability to complete a task.

Reasonable suspicion testing holds employees accountable for all actions. Employees can be expected to come to work free of the influence of alcohol or illegal drugs. Testing when alcohol or illegal drug use is suspected can help stop the cascading harm substance abuse brings.

A workplace substance abuse policy should let employees know that a reasonable suspicion drug test may be given when warranted. It should also outline the consequences employees face if a reasonable suspicion drug test is positive.

The supervisor�s role

Supervisors should be aware of the importance of taking proper action when substance abuse is suspected. They should:

• Understand the reasons for testing,
• Know the signs of substance abuse,
• Recognize the importance of promptly addressing this sensitive issue, and
• Be ready to handle a situation that can become emotional or potentially dangerous.

Properly addressing situations where substance abuse is suspected provides a solid foundation for a workplace that is safe, productive, and supportive of worker well-being.

Making observations

A test for reasonable suspicion of alcohol use or illegal drug use needs to be based on solid, independent observations. While the test is at the supervisor�s discretion, it should not be done on a whim. It may not be based on a gut feeling that someone is under the influence of drugs or alcohol, or only on a rumor that someone has been using drugs.

To be fair to everyone involved, supervisors need to be able to justify the reason for the test through a documented pattern or observations of unsafe or unusual behavior. Reasonable suspicion doesn�t mean beyond a reasonable doubt, but before a test is done there should be specific, observable signs that can be documented.

These observations need to be specific and recent. The observations should be confirmed by another manager or supervisor, or someone from human resources.

Addressing rumors: If suspicions are based on an anonymous tip or a tip from a coworker of the employee, a supervisor should not automatically take that person�s word for it (there may be an ulterior motive, or the employee may have simply misinterpreted certain actions that a trained supervisor would see differently).

The supervisor does not need to completely disregard the information, but should conduct an investigation.

Post-accident drug tests

• A company can test employees after an accident when there is reason to believe drugs or alcohol contributed to the incident.
• Employers should not test after every accident as this can discourage accident reporting.
• Employers who test employees in retaliation for reporting a workplace injury or accident violate OSHA regulations.

A workplace accident or incident could lead a supervisor to suspect that a worker is under the influence of alcohol or illegal drugs. The worker may have been driving erratically or working in an unsafe manner directly before the incident, leading to the suspicion that drug or alcohol use contributed to the cause. Perhaps the severity of the incident leads to the suspicion that the driver was impaired.

Justifying a post-accident test

If it is possible that drug or alcohol use contributed to a workplace accident, a reasonable suspicion drug test is justified. However, rather than having a blanket policy requiring testing after all accidents or incidents, an employer should consider the nature of the situation.

The Improve Tracking of Workplace Injuries and Illnesses rule from the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to discourage employees from reporting injuries and illnesses that occur at work. It impacts post-accident drug testing when an injury occurs.

The rule allows many types of drug testing, but a test should be avoided when there is no possibility that alcohol or drug use was a contributing factor. For example, if a ceiling tile breaks loose and falls on an employee, it would be very hard to justify giving the employee a drug or alcohol test. There is no reason to suspect that alcohol or drug use contributed to that accident. This type of situation shows why it is risky to have a blanket drug testing policy.

Conducting a drug test to evaluate the root cause of a workplace incident is allowed under the rule. An employer could conduct a post-accident test if an employee�s behavior may have had an effect on the incident. For example, if a forklift operator is injured in an accident, a drug test could be conducted if the employee�s actions contributed to the injury.

Who to test after an accident

An employer should test all employees whose conduct may have had a role in a workplace accident or incident, not only the employees who reported injuries.

If a bystander�s actions could have contributed to an accident, the bystander should be tested as well.

Problematic post-accident tests

A post-accident drug test would violate the law if an employer conducted the test to penalize an employee for reporting a work-related injury or illness rather than to promote workplace safety and health.

Most drug testing allowed under OSHA rule

The Improve Tracking of Workplace Injuries and Illnesses rule does not prohibit drug testing, and the agency recognizes that most employers conduct drug testing to promote worker safety and health.

The department notes that evidence that an employer consistently enforces legitimate work rules demonstrates that the employer is serious about creating a culture of safety.

Return-to-duty drug testing

• Employers may include unannounced drug tests in an employee�s return-to-work agreement.
• The employer should be aware of federal and state laws relating to discrimination and drug testing.

When an employee goes back to work after successfully completing a drug or alcohol rehabilitation program, return-to-duty testing may be conducted to ensure that the employee is refraining from substance abuse.

Employees who are in non-regulated positions are not required by law to follow specific drug testing regulations when they return to work after completing a rehabilitation program. An employer may determine that return-to-work testing is warranted, however, or testing may be part of the employee�s recovery program.

Limitations on return-to-duty testing

When conducting return-to-work or return-to-duty drug tests, employers must be aware of state drug testing laws and federal anti-discrimination laws.

State laws: State laws may place restrictions on random testing. As return-to-duty tests are usually unannounced, they may fall into this category.

When conducting return-to-duty tests, employers should make sure they are justified by the situation and allowed under state law.

Federal anti-discrimination laws: When return-to-duty testing is conducted, testing requirements should be the same for all employees returning to the same job duties. One employee should not be tested 12 times in a year, while another employee with similar job duties is tested twice, for example. This helps avoid a discrimination claim.

If there is a reason for testing a certain employee at a different rate, that information should be documented.

Alcohol testing restrictions: The Americans with Disabilities Act (ADA) considers a test for alcohol to be a medical exam and places restrictions on when a medical can be conducted. An employer considering random return-to-duty testing for alcohol needs to consider the safety risks associated with an employee�s job duties.

Drug testing, including return-to-duty testing, is allowed under the ADA, as long as it is done in a non-discriminatory manner.

Also see Alcohol Testing, When to test.

Employers must not discriminate against employees in recovery, and there are benefits to supporting workers who have gone through treatment for addiction. When employers work to bring back employees who have gone through recovery, valuable workers are retained and the cost of hiring and training new employees is avoided.

The recovering employee is often grateful for the second chance and shows this through loyalty to the company.

How to test

• State law may impact whether an employer can conduct a drug test through a service provider or in-house.
• Employers should know state laws and employee rights related to drug testing and test integrity.
• The ADA requires employers to accommodate employees who cannot provide test samples for a medical reason.

When conducting employee drug tests, a state law may require employers to follow specific procedures or use a certified laboratory.

In states where drug testing is not regulated, a company may structure the program as it sees fit. Employers may opt to work with a service provider to coordinate testing services or could take care of things in-house.

A certified lab can be used to test all samples or confirm positive tests. A best practice is to use a lab certified by the Department of Health and Human Services or a state health department. The service provider can be the same one that is used for testing the company�s Department of Transportation-covered employees.

Test integrity

The federal government does not provide specific testing procedures that must be followed when conducting non-Department of Transportation (DOT) drug and alcohol tests. However, an employer must ensure that the test is conducted in a way that respects an employee�s privacy and brings an accurate test result.

In all cases, the sample should be collected in a manner that upholds the dignity of the person being tested.

An employee�s rights under the Americans with Disabilities Act (ADA) must also be taken into account. An employee may need an accommodation if a medical condition prevents a urine sample from being provided, for example.

If drug testing is being done at an outside facility, an employer can work with the testing facility to ensure that the facility takes proper steps to respect the privacy of applicants and employees, and that the test is conducted in a way that complies with any state laws that apply.

If a company is conducting drug testing in-house, the employer must make sure the person collecting the sample and reading the results has been trained in the proper methods and procedures. All applicable state laws must be followed.

It is useful to have testing procedures outlined in a drug testing protocol that is followed by the company. Defining these steps can be helpful to supervisors and helps maintain consistency in how tests are conducted.

Including this information in drug testing protocol document helps a workplace ensure test integrity:

• Documentation of reasonable suspicion drug use,
• Proper collection of the sample,
• Privacy of the person being tested,
• Methods for deterring sample contamination and adulteration, and
• Documentation (labeling, chain of custody).

Accommodations during the drug testing process

When conducting a drug or alcohol test, employers may need to make an adjustment to the way a test is conducted if the employee or applicant needs an accommodation under the Americans with Disabilities Act (ADA).

Offering an alternative type of drug test can be one way of providing a reasonable accommodation to a person with a disability. If a person cannot provide a urine sample for a medical reason, for example, an accommodation should be considered. The company should discuss the matter with the employee to see if an alternative test (such as a hair test) is an option.

If the test is being conducted for Department of Transportation (DOT) purposes, and an applicant cannot provide the sample required for the test, employers need to work with the medical review officer and follow the steps required by DOT regulations.

Next steps

• Follow company policy if a drug test is positive.
• The consequences of a positive test may depend on state law.
• Allow the employee to return to work if the test is negative. Paying for time missed due to a suspension is good company policy.

After a drug test is conducted, it may take a few days for the results to be received. If a test was conducted because of reasonable suspicion of substance abuse, the employee should not return to work after taking the test. The employee can be taken home or sent home in a cab after the test is completed. The employee can be placed on suspension or paid leave until the results are returned.

After drug test results are received, an employer�s next steps are based on whether the test is positive or negative.

Negative result: If the drug test is negative, the employee can return to work. The company should pay for time missed because of the suspension; this is not required by law, but would be a good practice and show of good faith.

If the test was taken by an applicant whose job offer was contingent on passing a drug screen, the company may continue with the hiring or onboarding process.

Positive result: If a test is positive, employers can act under company policy. The consequences of a positive test could include completion of a rehabilitation program before returning to work, suspension, or termination.

If the test was given to a job candidate, a positive test could be a reason not to hire the candidate.

A state law may require an employer to provide the option for rehabilitation if a test is positive. A state law may also require an employer to consider accommodations for medical marijuana use.

Legally prescribed medication

If a drug test comes up as positive due to an applicant or employee taking a legally prescribed medication, the drug test result is not positive for illegal drugs. In addition, if a prescription drug does show up on a drug test result, the information needs to be kept confidential under the ADA.

A medical review officer will typically investigate a positive test result to see if was caused by legally prescribed medication and will not report the result as positive if the medication is being taken as prescribed.

If a company does not used a medical review officer to investigate positive test results, a company can ask the job applicant or employee about lawful drug use as a possible explanation for the positive result.

If the positive result was due to legal use of a prescribed medication, employers should not take a negative employment action based on the result of the test.

If an employer learns that an applicant or employee is taking a legally prescribed medication and use of the drug is a concern, an employer can consider whether an accommodation can be provided. Options might include a flexible schedule, a job transfer, or leave. Under ADA guidelines, a company would not be able to reject a job candidate because it thinks or suspects that a certain condition or medication could cause problems in the future.

Reasonable accommodations

If employers are considering not hiring an individual because of a medical condition (which may involve a medication), the company must take additional steps to show that the candidate is not being discriminated against based on a disability.

This means that employers must be able to show that the candidate is unable to perform the job�s essential functions because of a medical condition, or that the candidate will pose a direct threat because of a medical condition. Employers must also show that no reasonable accommodation was available that would enable the individual to perform the essential job functions, or that accommodation would impose an undue hardship.

To validate that the candidate can be legitimately disqualified because of a direct threat, a company needs to be able to show:

• There is significant risk of substantial harm;
• The specific risk is identified;
• It is a current risk, not one that is speculative or remote;
• The risk assessment was based on objective medical or other factual evidence regarding the individual; and
• If a genuine significant risk of substantial harm exists, the employer has considered whether the risk can be eliminated or reduced below the level of a direct threat by reasonable accommodation.

These steps should not be taken lightly. A decision to not hire an applicant because of a medical condition, or legally prescribed drug, must be given careful consideration.

The reasonable suspicion drug testing process

• The five steps to administering a reasonable suspicion drug test are to observe, confirm, document, confront and test.

Step 1: Observe

The signs that a person is impaired by alcohol or drug use may be immediately observable or may be seen over time.

The physical, emotional, and behavioral signs of substance abuse can include:

• Slurred speech
• Chills
• Smell of alcohol
• Excessive talking
• Poor motivation
• Lack of energy
• Limited attention span
• Decreased dexterity, agility, and coordination
• Negligence or carelessness
• Disregard for safety
• Anxiety
• Denial
• Paranoia
• Involvement in an accident that results in serious damage

More subtle signs can include:

• Physical deterioration
• Depression
• Increased aggression
• Excessive and unexplained absences or days off
• Borrowing money

If any of these signs and symptoms appear, the supervisor will have to make an important judgment call. Does the person’s behavior represent an immediate or imminent danger to himself or others? If so, the supervisor must act immediately to remove the employee from a dangerous situation. The observations should also be documented.

Even if an employee’s actions do not rise to the level of immediate danger or warrant a reasonable suspicion drug test, a supervisor should not ignore unusual or problematic behavior and hope it will go away. If a supervisor notices that the employee’s performance is deteriorating, or the employee’s interactions with coworkers are causing stressful or unproductive situations, the supervisor should take action.

The supervisor can talk to the employee about what has been observed and point out how the employee’s actions conflict with workplace expectations. The supervisor may ask if there is anything the employee wants to talk about, and point out any employee assistance programs that are available.

An employee’s unusual behavior might not stem from substance abuse, but could be an indication of another issue that requires attention. An employee may have a medical problem that requires an accommodation under the Americans with Disabilities Act or leave under the Family and Medical Leave Act.

Discussing the behavioral issues and other signs that are causing concern is a first step in uncovering issues that require further attention. If action needs to be taken, the supervisor can contact human resources for the next steps in the process.

Step 2: Confirm

After a supervisor has personally observed that an employee’s appearance, behavior, speech, and/or body odors are consistent with the signs and symptoms of drug or alcohol use, these observations should be confirmed by another manager or supervisor or someone from human resources. The second person should observe and document the suspicions independently.

Step 3: Document

Supervisors should have written documentation relating to the signs of impairment that led to the drug test. This can be done using a checklist of behaviors that can indicate impairment. All supervisors or managers who witness the employee’s behavior should also fill out the checklist.

In addition to checking off observed behaviors that indicate an employee could be under the influence of alcohol or illegal drugs, a supervisor should expand on what was seen. These details should be documented as objectively as possible. Statements such as “Jason appeared drunk” or “Pat looked stoned” are not detailed enough. Comments like this are opinions and do not provide a description of exactly what was observed.

Instead, support the list of observations with specific, detailed statements, like “Jason was slurring his speech and had an odor of alcohol on his breath,” or “Pat tripped three times while walking a distance of 100 feet and was not able to clearly state a reason for her actions.”

Step 4: Confront

If the documented observations reasonably suggest impairment, it’s time to confront the employee. Confronting an employee who has a suspected substance abuse problem is not easy, but for the safety and productivity of all workers, it must be done.

A supervisor may want to practice having a conversation about substance abuse before a difficult situation arises to help the supervisor respond properly when an employee needs to be confronted.

The supervisor should remember that the goal of the meeting is not to punish the employee, but to gather more information about the situation and give the employee a chance to offer an explanation for what the supervisor has observed. A supervisor should not rush to conclude that alcohol or illegal drug use is the cause of the behavior. Some medical conditions can mimic the symptoms of drug or alcohol use, so there may be a legitimate reason for the employee’s behavior.

The meeting should be held in a private setting. This preserves confidentiality, avoids a scene, and spares the employee public embarrassment. The meeting room may require a telephone and perhaps a box of tissues.

A supervisor should be prepared for the meeting and not rely on memory; all supporting documents and records should be available. The supervisor should be familiar with the company’s substance abuse policy. If not, it should be reviewed before the meeting. The supervisor should also review the documents relating to the signs of suspected alcohol or drug use.

During the meeting, the supervisor needs to:

• Maintain control and stick to the facts as they affect work performance. During the meeting, the company’s expectations relating to the use of alcohol and drugs should be communicated, and specific examples of what has been seen should be shared. It can be helpful to have a copy of the company’s substance abuse policy to share with the employee.
• Be supportive, but avoid emotional involvement. The tone of the meeting should be respectful. A supervisor needs to:
  • Maintain composure,
  • Avoid conflict,
  • Speak in a calm voice,
  • Listen respectfully, and
  • Ignore inflammatory remarks or combative acts.
• Be clear and firm. The supervisor should not accuse the employee, but should simply state the observations and the need to follow the company’s substance abuse policy.

The employee should be offered the chance explain the observations. A supervisor can ask questions such as, “Is anything going on?” but should not allow the employee’s explanation to sidetrack the conversation.

The supervisor should not attempt to diagnose an employee’s condition, nor simply accept an employee’s explanation (e.g., “I took a strong cold medicine this morning.”). Employees will usually have an excuse, and this is not the time to determine if that excuse is valid. The supervisor may point out that if there is a reasonable explanation, the test results will take that into account. If an employee becomes defensive or issues denials, a supervisor should listen to what the employee must say, but use the company’s substance abuse policy to stay on point.

A supervisor should be prepared to call upon the next level of management or security, if necessary.

Step 5: Test

The next step is to follow the company’s policy for directing the employee to drug and/or alcohol testing. Exactly how drug and alcohol testing is handled, and by whom, should be clarified in the company substance abuse policy.

If the test is to be conducted offsite, do not let the employee drive to the site. The company could face liability if the employee gets in an accident and the company knew the employee was impaired. Instead, it’s a good idea to either have a supervisor drive the employee to the site or arrange for a transportation service. It is best to have someone from the company present who has a vested interest in making sure an accurate drug test is conducted (and that the employee actually goes to the site to take the test).

Some employees may want to drink large amounts of water to dilute a urine sample or make stops along the way or otherwise delay taking the test. Don’t allow this to happen.

Be on the lookout for adulteration products. There are products readily available over the internet that employees can use to adulterate a urine sample.

If the employee refuses to be tested, or clearly obstructs the testing process, this can be treated as a positive test. The employee would face consequences as outlined in company policy.

At this point, the employee may also admit to using drugs or alcohol. If this happens, discuss the consequences of this as it relates to company policy. Company policy may call for a referral to an assistance program provider or rehabilitation services, suspension, or termination.

When does the OSHA post-accident drug testing rule not apply?

• The Improve Tracking of Workplace Injuries and Illnesses final rule does not apply when a post-accident drug test must be conducted to comply with federal or state regulations.

Some federal and state regulations require employers to conduct a post-accident drug test. When those regulations apply, the Improve Tracking of Workplace Injuries and Illnesses final rule from the Occupational Health and Safety Administration (OSHA) does not prohibit the test.

Department of Transportation regulations

The Department of Transportation (DOT) requires post-accident tests to be conducted when a regulated driver is involved in an accident.

Tests required by the DOT must be conducted according to those regulations.

State workers� compensation programs

Some states have workers� compensation discount laws that give employers a discount on workers� compensation insurance when an employer opts to comply with the requirements of the voluntary law. Some of these laws require drug testing. Those laws must be followed when they apply.

An employer would not violate OSHA regulations by conducting a post-accident drug test that is required by a state workers� compensation law.

No injury involved

The OSHA rule does not apply to when a drug test is conducted for an incident that does not involve an injury.

A drug test conducted after an accident or incident that does not result in an injury is permitted under the rule. In addition, pre-employment, reasonable suspicion, random, or other drug tests that are not related to the reporting of a work-related injury or illness are not restricted by the rule.

Other state or federal laws may impact the test, however, so an employer should always look to applicable laws and company policy when deciding whether or not to conduct a drug test.

Drug testing protocol and procedures

• Employers should document procedures and follow federal and state laws and regulations for conducting in-house drug tests.
• For off-site service providers, use a lab certified by SAMHSA or the state department of health.

Using a set procedure for drug testing helps ensure that state and federal regulations are followed. A written set of procedures helps those in charge of administering tests know what is expected. Consider including the following information in a procedural guide for drug testing:

• Testing procedures: The employer or service provider should take care that tests are conducted in a way that preserves the privacy and dignity of the person being tested.
• Certified laboratories: To ensure the accuracy of test results, it is best to have an initial positive test confirmed by a certified laboratory. The Substance Abuse and Mental Health Services Administration (SAMHSA) certifies laboratories which may conduct drug tests for federal agencies and regulated industries, such as the transportation industry. It is always a best practice to use a lab certified by SAMHSA or the state department of health. Some states require employers to use certified laboratories. States with laws relating to the use of certified laboratories for workplace drug testing include Connecticut, Hawaii, Idaho, Kansas, Louisiana, Maryland, Minnesota, Mississippi, Montana, Nebraska, North Carolina, Oklahoma, Oregon, Utah, Vermont, and West Virginia.
• Chain of custody: This protocol documents what happens to a sample from the time it is collected until the time it is disposed of. A chain of custody form is written proof of everything that happens to a sample at the collection site and laboratory.
• Initial screen and confirmation test: A test may consist of an initial screen and a confirmation test if the initial screen is positive. If the confirmation test is positive, the test is reported as positive. Because of the need for the conformation test, a split sample is typically used. The urine sample is split into two, with one being used for the initial screen and the second for a confirmation test if that is needed.
• Cutoff levels: Drug testing determines that a specified amount of a drug or its metabolite is in urine, blood, or an alternative specimen. There is a minimum measurement applied to drug testing for a positive result to occur. This is called the cutoff level, and it is different for each drug. Setting cutoff levels can be challenging, as setting them too low will result in more false positives. If the level is set too high, however, a drug user could go undetected. Work with the company service provider to determine the proper cutoff concentrations for levels for non-Department of Transportation (DOT) tests are within acceptable range. SAMHSA provides some guidelines.
• Medical review officer: In the event a test is positive, a review by a medical review officer (MRO) can ensure that all procedures were properly followed. The MRO can also contact the individual to make sure the positive result was not due to medication the individual was taking. If the MRO is satisfied that there was no medical or other legitimate reason for a positive result, the MRO reports the positive result to the employer. Using an MRO to make this determination can help an employer avoid a discrimination lawsuit. An employer that is aware of the prescriptions an employee is taking would have access to medical information. If the employer used this information as the basis for a negative employment action, such as not hiring or firing the individual, this would be problematic under the Americans with Disabilities Act (ADA).
• Testing tricks: The company service provider or in-house tester should be aware of the many ways individuals will try to beat the system and alter the results of a test. The service provider or company should have procedures in place for ensuring the accuracy of a test.

Drug test specimen types

• Drug test specimen types include urine, blood, saliva, and hair.
• Some states place restrictions on the type of test employers can use.

A number of testing methods are available for detecting drug use. The one that is used will depend on the situation, state laws, and workplace needs.

Urine: The most common form of drug testing is to analyze a sample of urine for traces of drugs. A positive test result indicates that a drug was used sometime in the recent past; it does not tell whether or not the person was under the influence when giving the sample. A urine test can be used to detect alcohol, but it is not typically used because it is less accurate than a blood or breath test.

Blood: A blood test measures the actual amount of alcohol or other drugs in the blood at the time of the test. It may be restricted under state law; blood testing is prohibited in Vermont.

Saliva: Oral fluid tests can be a rapid and non-invasive way of testing for drugs. Non-negative initial on-site screens often require confirmation by a laboratory. Rapid testing is not allowed in some states, including Minnesota and Vermont. It is not allowed under voluntary laws in Alabama, Arkansas, Kansas, Kentucky, Ohio, and Tennessee. In addition, in North Carolina, rapid testing is only allowed for pre-employment testing. In New York, an on-site testing facility is subject to the same standards as laboratories.

Hair: A hair test can show drug use for several months before the test is taken. Drugs won’t be detected in hair for about five to seven days after use. Because of this, hair tests are not a reliable way to test for impairment at the time of an accident. Hair tests are prohibited in some states, including Connecticut, Louisiana, Nebraska, and Vermont. Hair tests are prohibited in Alaska, Arkansas Kansas, Ohio, Tennessee, Wyoming if an employer is following a voluntary state drug testing law. In Maryland, hair testing is only allowed for pre-employment tests.

Test panels and cutoff levels

• Employers should work with a lab to determine which drugs to test for if the drug testing panel is not specified by state law.
• Each drug is different when considering which minimum measurement, or cutoff level, should be used to indicate a positive result for a drug test.

The types of drugs that are tested for make up the drug testing panel. Employers may test for any number or type of drugs unless the panel is specified by state law.

When state law does not require a specific drug testing panel to be used, an employer may work with a lab to determine which drugs are commonly used in the area. This information can be helpful when deciding which ones to place on the drug testing panel.

Testing panels commonly include:

• Amphetamines
• Cocaine metabolite
• Marijuana metabolites
• Opiates
• Phencyclidine
• Barbiturates
• Benzodiazepines
• Methadone
• Propoxyphene

A state law may limit the drugs an employer can test for, or require certain drugs to be on the panel. Louisiana, for example, requires a specific drug testing panel to be used. In the following states, a specific drug testing panel must be used if an employer is complying with a voluntary law: Alabama, Arkansas, Florida, Georgia, Kansas, Kentucky, Ohio, and Tennessee.

Cutoff levels

A drug test measures the level of drugs, or byproducts of drugs called metabolites, that are in a person’s system. When setting up drug testing procedures, employers need to determine the level of drugs or metabolites that will bring a positive result. This is called the cutoff level.

The cutoff level is the minimum measurement applied to drug testing for a positive result to occur, and it is different for each drug. Setting cutoff levels can be challenging, as setting them too low will result in more false positives. For example, poppy seeds could cause a positive result if there is a low cutoff level. If the level is set too high, however, a drug user could go undetected.

An employer can work with a lab to establish cutoff levels for a positive test. Guidelines set by the Substance Abuse and Mental Health Services Administration (SAMHSA), which establish detection levels for Department of Transportation drug screens, can provide guidance.

State laws may have additional requirements. In Kansas and Louisiana, SAMHSA cutoff levels must be used. In addition, SAMHSA cutoff levels must be used in Alaska, Kentucky, and Ohio if an employer is following the voluntary law.

When to conduct alcohol tests

Employers may conduct drug and alcohol tests to support a safe and productive workplace and prevent substance abuse from having a negative impact. Because a test for alcohol is considered a medical exam under the Americans with Disabilities Act (ADA), while a drug test is not, and because state laws impact drug testing, there are different considerations that need to be taken into account for each type of test.

For information on when and how to conduct a drug test, see the Drug Testing section.

When testing for alcohol, the approach that is taken will depend on why a test is being given.

Pre-employment alcohol tests

When conducting an alcohol test before a job candidate is hired, employers need to be careful with the timing of the tests. Under the ADA, a test for alcohol can only be given after an offer of employment has been made.

In addition, if an alcohol test is required, it should be conducted for all candidates for a position. Treating all job candidates the same helps avoid a discrimination claim.

Random alcohol tests

After an employee begins work, random alcohol tests should generally not be given to employees unless testing is required under a state or federal law, such as Department of Transportation (DOT) regulations for covered drivers. There are also narrow exceptions that allow random tests for some return-to-duty situations.

Random testing is generally not allowed because an alcohol test is considered a medical exam under the ADA, and the ADA restricts when a medical exam can be conducted.

After an employee begins work, an employer can require a medical exam only if:

• There is a reasonable belief, based on objective evidence, that a particular employee is unable to perform the essential functions of the job because of a medical condition; or
• The employee will pose a direct threat to safety because of a medical condition.

A random alcohol test does not target a specific employee or incident, so it would not be based on objective evidence or a direct threat.

There are a few narrow job-related exceptions where random testing is allowed:

• It may be allowed after an employee has undergone alcohol rehabilitation and the employer reasonably believes the employee would pose a direct threat in the absence of such testing. For example, random testing may be needed if the employee is a bus driver or surgeon, but may not be needed if the person is an accountant.
• Random testing is allowed in the case of �last chance agreements.� This is a contract between an employee and an employer following an incident that would normally result in discipline. The agreement gives the worker an opportunity to continue employment after committing a serious violation of company policy.
• The Equal Employment Opportunity Commission (EEOC) allows periodic medical examinations to be given to individuals with jobs that impact public safety. These include police officers, firefighters, and private security officers.
• A court has ruled that random tests can be given if employees wear safety gear that prohibits an employer from assessing visible signs of alcohol use. (This is only one court�s opinion, however, so an employer should be very careful if it is testing employees randomly because of the protective gear they are required to wear.)

A blanket policy to do random testing would likely violate the ADA. However, an employer may assess the situation and determine whether or not it falls under one of the exceptions that are noted. If an employer is conducting random alcohol tests on an individual employee, the employer should have a qualifying reason for doing so.

If the employer has a concern about safety, and an employee is exhibiting signs of alcohol use, a reasonable suspicion test could be given. This is allowed under the ADA because it meets the law's reasonable belief and direct threat requirements. The reasonable belief that an employee will pose a direct threat due to alcohol use needs to be based on objective evidence. This requires an individualized assessment of the employee and the employee's position, and cannot be based on general assumptions.

Reasonable suspicion alcohol tests

The ADA does not restrict reasonable suspicion tests for alcohol. When an employee is showing signs of intoxication from alcohol, a test can be conducted.

An employer can follow the same procedures � observe, confirm, confront, test, and document� for reasonable suspicion alcohol tests that are used when a reasonable suspicion drug test is conducted:

Step 1: Observe

A supervisor or manager observes the unusual or curious behavior.

Step 2: Confirm

The supervisor confirms that the physical, behavioral, speech, and/or performance indicators being observed are consistent with the signs and symptoms of alcohol misuse. If possible, these observations are also confirmed by a second supervisor.

Step 3: Confront

The supervisor approaches the employee and notifies the employee of the suspicion. The supervisor describes exactly what was observed, sticks to the facts, shows concern, and explains the need for an alcohol test.

Step 4: Test

The supervisor orders the appropriate test. The employee is taken to a testing facility if in-house tests are not conducted. It is a best practice to have the supervisor or another company official accompany the driver to the facility.

Step 5: Document

The supervisor documents the observations leading to the alcohol test. The documentation must be objective and should be detailed. "I" statements should be avoided. Instead, the supervisor documents what has been observed. For example: �The employee had difficulty concentrating, seemed uncoordinated, and dropped a toolbox on July 12. The employee arrived late for work on that date without an explanation. The employee�s breath smelled of alcohol.�

Post-accident alcohol tests

A workplace accident or incident could lead a supervisor to suspect that a worker is under the influence of alcohol. The worker may have been driving erratically or working in an unsafe manner directly before the incident, leading to the suspicion that alcohol use contributed to the cause. Perhaps the severity of the incident leads to the suspicion that the driver was impaired.

An alcohol test can be conducted after a workplace accident or incident if alcohol use is suspected. The ADA does not restrict a test for alcohol in this situation because there is a reasonable belief that the employee poses a direct threat to safety.

Return-to-duty tests

While a random alcohol test should not generally be given to employees who do not fall under DOT regulations, there is a narrow exception to the random alcohol testing ban under the ADA for employees returning to a safety-sensitive position after an individual has attended a rehabilitation program for alcohol addiction.

For example, a bus driver who was with a company for only a few months before successfully completing an alcohol rehabilitation program may be tested periodically for alcohol after returning to work.

However, the ability to conduct a random test under this exception depends on the specific situation and the employee�s job duties. An employer should consider:

• The safety risks associated with the employee�s job,
• The consequences of the employee�s inability or impaired ability to perform the job functions,
• How long the individual has been an employee,
• When rehabilitation was completed, and
• Whether the employee has previously relapsed.

If an employee�s situation does meet these considerations, the random alcohol test should be designed to address the particular safety concerns of the employee�s job. The test should not be used to harass, intimidate, or retaliate against an employee.

After an employee repeatedly tests negative, the ransom tests may no longer fit the ADA requirement of being job-related and consistent with business necessity. It would be best to discontinue random alcohol testing after a series of negative tests, as the employer may no longer have a reasonable belief that the employee will pose a direct threat.

How to test and handle results

• Alcohol tests should be conducted in a manner that respects an employee�s privacy.
• Some states regulate how an employer tests for alcohol use.
• Follow company policy and adhere to state laws if a test is positive.

A breath test is the most common method of testing for alcohol. The results tell if the individual is under the influence of alcohol at the time the breath sample is taken.

An employer must ensure that the test is conducted in a way that respects an employee�s privacy. In addition, the employer should be sure that the breathalyzer brings an accurate test result.

State laws must be followed. Some states restrict who can conduct a test or the type of test that can be conducted.

After a test

The results of an alcohol test are typically available soon after a test is conducted.

Negative result: If the drug test is negative, the employee may return to work.

If an employee�s erratic or unsafe work behavior were factors in the test being conducted, an employer may address those issues separately.

If the employee is fit to return to work, the company should pay for time missed because of the test. This is not required by law, but would be a good practice and show of good faith.

Positive result: If a test is positive, the employee should not be allowed to return to work. The employer should arrange for the employee to be taken home.

The employer can follow company policy with regard to the consequences of a positive test. This could include completion of a rehabilitation program before returning to work, suspension, or termination.

A state law may require an employer to provide the option for rehabilitation if a test is positive.

Effects of marijuana use

• The effect marijuana has on the body is a good reason to prohibit its use in the workplace.
• The way marijuana is ingested impacts its effects and the length of impairment.

Marijuana has been legalized for medical and recreational use in many states, although it remains illegal under federal law. When determining how to address marijuana, a company should take employee job duties, applicable federal state and federal regulations, and workplace culture into account.

The short-term effects of marijuana use are a concern with regard to workplace safety. Marijuana use can bring:

• Problems with attention, problem-solving, and decision making,
• Distorted perception,
• An increased risk of accidents and injuries,
• Impairment of coordination, memory, and judgment,
• Anxiety or depression.

Over-intoxication from marijuana can bring feelings of panic and paranoia, and studies have shown that some products may bring schizophrenia and psychotic disorders.

All these are good reasons to prohibit marijuana use in the workplace, and to prohibit all employees from being impaired by the drug. Just as a company doesn’t want employees to be impaired by alcohol while at work, it doesn’t want employees to be impaired by marijuana.

How long after using is a person impaired by marijuana?

People react to marijuana differently. A person is going to be impaired for a few hours to a day after using marijuana, and the degree of impairment at a given point in time depends on several factors. How long a person will be negatively impacted by marijuana use will vary, depending on:

• How marijuana was ingested,
• A person’s body composition,
• A person’s tolerance to the drug.

Ingestion: Marijuana can be smoked, mixed into food or drinks, or vaped. When cannabis is consumed in an edible, intoxication is not going to occur right away, and the effects are going to last longer.

Body composition: The way a person is built, their age, and other biological and genetic factors make a difference in how quickly marijuana is metabolized.

Tolerance: A person who uses marijuana more often is going to have a higher tolerance.

Concerns with marijuana testing

• Some states prohibit employers from using a positive drug test as a reason for a negative employment action.
• A drug test for marijuana cannot indicate the effect the drug is having on an employee.
• Several factors impact a person’s degree of impairment from marijuana.
• A test that proves a person’s level of impairment from marijuana does not exist.

In states where marijuana is legal, a law may prohibit employers from using a positive drug test for marijuana as the basis for a negative employment action. Why is drug testing so controversial when it comes to marijuana use? It comes down to what the test can prove.

A drug test can show whether certain chemicals are present in a person’s body. The test can also detect whether a chemical’s metabolites, which are related to the chemicals, are in a person’s system.

A drug test does not measure the way someone is feeling or acting because of these chemicals. A positive test shows that marijuana has been used, but does not necessarily indicate anything about the effect the drug is having.

A person who uses marijuana will be impaired for three to 24 hours after using the drug, but determining whether a person is impaired a specific moment in time after using the drug currently can’t be proved by a drug test alone.

The degree of impairment from marijuana is going to depend on several factors, including:

• How the marijuana was ingested (vaped, smoked, or consumed in an edible),
• How a person is built and the amount of body fat the person has, and
• How often a person uses the drug.

Because marijuana is absorbed by the body’s fat and is slowly released into the bloodstream, a person who uses marijuana will test positive for the drug for a few days or even up to a month after it was last used, long after impairment wears off.

Why test for drugs and alcohol?

Because of the way marijuana is metabolized by the body, the amount of THC (the chemical in marijuana causing the high) measured by a drug test is not a consistent predictor of impairment. This may raise the question, why test for drugs and alcohol at all?

A drug test will show that a drug was used recently. Depending on what employers are testing for, a drug test can determine whether a person is using illegal drugs. It can certainly be a concern that a person has used an illegal drug recently.

If an employee is working in a dangerous position where impairment would cause a safety concern, testing may be warranted to support workplace safety.

In addition, a test for alcohol can prove that a person is impaired by alcohol. Alcohol is metabolized differently than marijuana and other drugs. There is a direct correlation between the amount of alcohol detected by a test and the degree to which a person is impaired by alcohol. A test for alcohol can accurately measure a person’s degree of impairment from alcohol use.

Tests are getting better at detecting recent use of marijuana, and tests that measure a person’s degree of impairment from marijuana use are under development. While there is currently no test that can determine whether or not a person is impaired on Monday after using marijuana on the weekend, it is clear that a person is impaired for several hours after using the drug. Marijuana use shortly before or during work time is reason for concern.

In some cases, federal law requires employers to test employees for drugs and alcohol. For example, drivers who are covered by Department of Transportation (DOT) drug and alcohol regulations are not allowed to use marijuana. They are tested for it, and face consequences if they test positive. When testing is required under federal law, an employer must adhere to those regulations and test employees for marijuana, even in states where marijuana is legal.

Medical marijuana laws

• Medical marijuana laws vary by state, so employers should check state laws for specifics.
• Even in states that protect marijuana use, employers can still ban its use, and being under the influence of the drug, at work.

Many states have laws allowing individuals to possess a certain amount of marijuana for the treatment of medical conditions. In these states, a person must have a recommendation from a medical care provider to use medical marijuana for treatment of the condition. A recommendation is not the same as a prescription, as a prescription cannot be written for a controlled substance and marijuana is a controlled substance under federal law. Medical professionals can recommend the drug when state laws allow, however.

Employee protections

Each state medical marijuana law is a little different, and the way these laws are written has changed quite a bit since the drug was first legalized in California in 1996. There is a growing trend for marijuana laws to contain protections for individuals who use medical marijuana.

A state medical marijuana law may:

• Prohibit employers from refusing to hire a person simply because the individual has a medical marijuana card.
• Prohibit employers from using a positive drug test to prove that a person is impaired by marijuana.
• Include anti-discrimination protections, which require employers to consider accommodations for individuals who use medical marijuana.

Asking about medical marijuana use at the interview stage of the employment process could be risky in states with medical marijuana laws. The drug remains illegal under federal law, but some state laws prohibit an employer from discriminating based on a person’s status as a medical marijuana cardholder.

Employers in states that prohibit medical marijuana discrimination should not refuse to consider a candidate for a job or discharge an employee simply because the person has a medical marijuana card. Instead, consider how a job candidate taking any prescription medication would be treated.

Employer protections

Even in states with employee protections for marijuana use, an employer can still prohibit marijuana use at work and can also prohibit an employee from being under the influence of the drug in the workplace.

Employers do NOT need to allow an employee to:

• Be impaired at work,
• Use marijuana in the workplace or on work time, or
• Possess marijuana at work.

Medical marijuana is legal in these states and the District of Columbia:

• Alabama
• Alaska
• Arizona
• Arkansas
• California
• Colorado
• Connecticut
• Delaware
• Florida
• Hawaii
• Illinois
• Kentucky
• Louisiana
• Maine
• Maryland
• Massachusetts
• Michigan
• Minnesota
• Mississippi
• Missouri
• Montana
• Nevada
• New Hampshire
• New Jersey
• New Mexico
• New York
• North Dakota
• Ohio
• Oklahoma
• Oregon
• Pennsylvania
• Rhode Island
• South Dakota
• Utah
• Vermont
• Virginia
• Washington
• West Virginia

Recreational marijuana laws

• Even in states where recreational marijuana is legal, employers can still require employees to adhere to a drug-free workplace policy.
• In some states, newer recreational marijuana laws offer employees some protections for off-duty use.

Recreational marijuana was first legalized under state law in 2012 and is now legal in more than 15 states. These laws allow individuals to possess a certain amount of cannabis, or a certain number of marijuana plants.

State recreational marijuana laws typically permit a person over age 21 to use or possess a limited amount of marijuana. While the laws protect a person from criminal prosecution when the state law is followed, the laws do not prohibit employers from requiring employees to adhere to a drug-free workplace policy. Employers may still discipline an employee who uses or possesses the drug at work.

Employees should be aware that off-duty use of marijuana could bring a positive test for the drug days, weeks, or even a month after it is used.

A few newer recreational marijuana laws include some protections for off-duty use. For example:

• Nevada restricts some pre-employment drug testing for marijuana, although it does provide exceptions for certain positions where drug use could adversely affect the safety of others.
• New Jersey employers may not take action based on a positive drug test for marijuana unless there is reasonable suspicion the employee used marijuana while working.
• New York City has a law banning pre-employment tests for marijuana. It contains exceptions for certain safety-sensitive positions.

Not every state protection is the same, but in these states, employers should pause before taking a negative action against an employee or job candidate because of off-duty marijuana use or a positive drug test for marijuana.

Employers do NOT need to allow an employee to:

• Be impaired at work,
• Use marijuana in the workplace or on work time, or
• Possess marijuana at work.

States where recreational marijuana is legal

Recreational marijuana is legal in these states and the District of Columbia:

• Alaska
• Arizona
• California
• Colorado
• Connecticut
• Delaware
• Illinois
• Maine
• Maryland
• Massachusetts
• Michigan
• Minnesota
• Missouri
• Montana
• Nevada
• New Jersey
• New Mexico
• New York
• Ohio
• Oregon
• Rhode Island
• Vermont
• Virginia
• Washington