Drug testing - Montana

Montana law allows drug testing for safety-sensitive positions and certain other roles. In addition, the state’s marijuana law restricts testing for marijuana.

Workforce Drug and Alcohol Testing Act
Drug testing is permitted of employees "engaged in the performance, supervision, or management of work in a hazardous work environment, security position, position affecting public safety, or fiduciary position... ." A hazardous work environment includes but is not limited to positions:

• For which controlled substance and alcohol testing is mandated by federal law, such as aviation, commercial motor carrier, railroad, pipeline, and commercial marine employees;
• That involve the operation of or work in proximity to construction equipment, industrial machinery, or mining activities; or
• That involve handling or proximity to flammable materials, explosives, toxic chemicals, or similar substances.

Employees must have 60 days' notice before a program is implemented or changed. The law allows pre-employment, random, follow-up, reasonable suspicion, and post-accident testing.

Policies and procedures: State law requires that an employer’s policies and procedures include:

• A description of the applicable legal sanctions under federal, state, and local law for the unlawful manufacture, distribution, possession, or use of a controlled substance;
• The employer's program for regularly educating or providing information to employees on the health and workplace safety risks associated with the use of controlled substances and alcohol;
• The employer's standards of conduct that regulate the use of controlled substances and alcohol by employees;
• A description of available employee assistance programs, including drug and alcohol counseling, treatment, or rehabilitation programs that are available to employees;
• A description of the sanctions that the employer may impose on an employee if the employee is found to have violated standards of conduct or if the employee is found to test positive for the presence of a controlled substance or alcohol;
• Identification of the types of controlled substance and alcohol tests to be used;
• A list of controlled substances for which the employer intends to test and a stated alcohol concentration level above which a tested employee must be sanctioned;
• A description of the employer's hiring policy with respect to prospective employees who test positive;
• A detailed description of the procedures that will be followed to conduct the testing program, including the resolution of a dispute concerning test results;
• A provision that all information, interviews, reports, statements, memoranda, and test results are confidential communications that may not be disclosed to anyone except the tested employee, the designated representative of the employer, as required in connection with any legal or administrative claim; and
• A provision that information obtained through testing that is unrelated to the use of a controlled substance or alcohol must be held in strict confidentiality by the medical review officer and may not be released to the employer.

Drug and alcohol testing procedures for samples covered under 49 CFR, Part 40 of the Department of Transportation’s regulations must conform to the procedures outlined in that regulation; for samples not covered under Part 40, the testing program must contain chain of custody and other procedural requirements that are at least as stringent, and the testing methodology must be approved by the FDA. The act allows for the collection of non-urine samples, but the collection, transport, and testing must be as stringent as the requirements in Part 40. An acceptable sample includes oral fluid obtained in a minimally invasive manner, in addition to breath and urine samples.

For individuals in covered positions, post-accident testing may be conducted when there is a workplace accident involving death, physical injury, or property damage in excess of $1,500, when there is reason to believe that the tested employee may have caused or contributed to the accident.

An employer may use random testing if specific procedures are followed:

• An employer or an employer's representative may establish a date when all salaried and wage-earning employees will be required to undergo controlled substance or alcohol tests, or both.
• An employer may manage or contract with a third party to establish and administer a random testing process that must include:
  • an established calendar period for testing;
  • an established testing rate within the calendar period;
  • a random selection process that will determine who will be tested on any given date during the calendar period for testing;
  • all supervisory and managerial employees in the random selection and testing process; and
  • a procedure that requires the employer to obtain a signed statement from each employee that confirms that the employee has received a written description of the random selection process and that requires the employer to maintain the statement in the employee's personnel file.

The selection of employees in a random testing procedure must be made by a scientifically valid method, such as a random number table or a computer-based random number generator table.

Positive drug test results must be reviewed and certified by a medical review officer. Except as provided in the state’s marijuana law, no adverse action, including follow-up testing, may be taken by the employer if the employee presents a reasonable explanation or medical opinion indicating that the original test results were not caused by illegal use of controlled substances or by alcohol consumption. If the employee presents a reasonable explanation or medical opinion, the test results must be removed from the employee's record and destroyed.

Breath alcohol tests must be administered by a certified breath alcohol technician. The equipment used must appear on the list of conforming products published in the Federal Register. A breath alcohol test must indicate an alcohol concentration of greater than .04 for a person to be considered as having alcohol in the person’s body.

Employee's right of rebuttal: The employee must be provided the opportunity to rebut or explain the results of any test. No adverse action, including follow-up testing, may be taken by the employer if the employee presents a reasonable explanation or medical opinion indicating that the original test results were not caused by illegal use of controlled substances or by alcohol consumption. If the employee presents a reasonable explanation or medical opinion, the test results must be removed from the employee’s record and destroyed.

Payment: State law requires an employer to pay for initial alcohol and controlled substance testing. Employees must be paid at the employee’s regular rate, including benefits, for time spent taking a drug test.

Marijuana testing

Under the state’s marijuana law, employers may not discriminate against an employee who legally uses marijuana during non-working hours away from an employer’s premises. Because a drug test will detect off-duty marijuana use, taking a negative employment action based only a positive drug test for marijuana would not be allowed. Exceptions apply if:

• Use of marijuana affects the safety of other employees or affects an individual’s ability to perform job-related employment responsibilities;
• An employer takes action based on the belief that the actions are permissible under an established substance abuse or alcohol program or policy, professional conduct, or a collective bargaining agreement; or
• There is a conflict with a bona fide occupational qualification that is reasonably related to a person’s employment.

An employer may:

• Prohibit marijuana use in the workplace or on the employer’s property,
• Discipline an employee for violation of a workplace drug policy or for working while intoxicated by marijuana products,
• Take a negative employment action because of an individual’s violation of a workplace drug policy or intoxication from marijuana while working,
• Include in a contract a provision prohibiting use of marijuana for a debilitating medical condition.

Workers’ compensation coverage

An employee is disqualified from workers’ compensation benefits for failing or refusing a drug test in violation of an employer’s written workplace drug policy. There is an exception for medical marijuana patients.

Testing procedures must comply with federal drug testing statutes and the state’s drug testing regulations.