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... ." 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.

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.

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.

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.