Drug testing state comparison

Alabama

Alabama law provides for a five percent discount in workers’ compensation premiums to employers who establish a drug-free workplace program in compliance with the Worker’s Compensation Premium Discount Act. The law requires that a program contain a written drug-free workplace policy statement, a substance abuse testing program, and provisions for an employee assistance program. The program requires one hour of employee training semi-annually and two hours of supervisor training. The Act allows for pre-employment, random, and reasonable suspicion testing, as well as follow-up testing after rehabilitation, testing as part of a fitness-for-duty exam, and post-accident testing.
The law allows for denial of workers’ compensation benefits following a confirmed positive drug test or a refusal to test.
Unemployment compensation
Workers will be disqualified for testing positive for illegal drugs after being warned of possible dismissal, for refusing to undergo drug testing, or for knowingly altering a blood or urine specimen.

Alaska

Alaska Voluntary Drug Testing Act
Alaska law provides legal protection for employers who voluntarily establish a drug and alcohol policy and testing program under the Voluntary Drug Testing Act. No restrictions are placed on the type of testing that is allowed (random, pre-employment, etc.). An employer must have a written policy, disseminate it to all employees, and give 30 days’ written notice before implementing the program.
Unemployment Insurance
For reporting to work under the influence of drugs/alcohol, consumption on the employer’s premises during work hours, or violation of employer’s policy as long as policy meets statutory requirements.
Workers’ compensation
Workers’ compensation law provides for denial of benefits if the injury was caused by drug/alcohol use. The presumption does exist, however, that an employee's injury was not proximately caused by intoxication or illegal drug use; employers must present substantial evidence to overcome this presumption.
School bus drivers
The law requires mandatory random drug and alcohol testing of school bus drivers.

Arizona

Private-Sector Drug Testing and Alcohol Impairment Act
The Arizona Private-Sector Drug Testing and Alcohol Impairment Act provides legal protection for private sector employers who voluntarily establish a drug and alcohol policy and testing program under the Act. If an employer adopts a program under the Act, all officers, directors, and supervisors must be included.
Under the Act, an employer cannot be sued for actions taken to exclude an employee from a safety-sensitive position. This includes reassigning the employee to another position or placing the employee on paid or unpaid leave, based on the employer’s good faith belief that the employee is in engaged in the current use of any drug (whether legal, prescribed by a physician, or otherwise) if the drug could cause impairment or otherwise decrease or lessen the employee’s job performance or ability to perform job duties.
This belief may be based on drug or alcohol test results, warning labels or other printed materials that accompany instructions for use of the drug, statements by the employee, information from a physician, pharmacist, or reputable reference source.
"Safety-sensitive position" means any job designated as a safety-sensitive position or any job that includes tasks or duties that could affect the safety or health of the employeeor others, including:

• operating a motor vehicle, other vehicle, equipment, machinery, or power tools,
• repairing, maintaining or monitoring the performance or operation of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damage,
• performing duties on the residential or commercial premises of a customer, supplier, or vendor,
• preparing or handling food or medicine, or
• working in a regulated occupation.

Arkansas

Arkansas Voluntary Drug Testing Program
The Arkansas Voluntary Drug Testing Program is a voluntary law that provides a premium credit on workers' compensation insurance to employers who implement and maintain a certified drug-free workplace program in accordance with the standards set forth in the Act. The Act is comprehensive and requires various types of drug and alcohol testing in order to qualify for the benefits. A comprehensive written policy must be implemented and the employer must notify employees that it is a condition of employment for an employee to refrain from reporting to work with the presence of drugs or alcohol in the employee’s body. If an injured employee refuses to submit to a test for drugs or alcohol, the employee may be denied certain workers’ compensation benefits. U.S. Department of Transportation drug testing procedures must be followed. The state law does not require random testing, but doesn’t preclude it, either. Employees not in safety sensitive positions may be tested for alcohol only for reasonable suspicion.
Workers’ compensation
The Arkansas workers' compensation law denies benefits when an accident is substantially caused by the use of alcohol, illegal drugs or prescription drugs use in contravention of physician's orders. The presence of any of these in the claimant's body creates a rebuttable presumption that the accident was substantially occasioned by the use of such substances.
Unemployment compensation
The Arkansas unemployment compensation law provides that an employee may be denied benefits if he or she is discharged for drinking on the job or reporting for work while under the influence of intoxicants, including a controlled substance; if discharged for testing positive for an illegal drug.
Paying for drug tests
Employers may not deduct the cost of a medical exam or drug test required by the employer. However, if an employee tests positive for an illegal drug, the employer and employee may agree in writing who will bear the cost of future drug tests or screens required as a condition of continued employment.

California

California Constitution Privacy Provisions
The privacy protections in California's Constitution and case law impact drug testing. The need to test should be balanced with an individual's right to privacy. Pre-employment and reasonable suspicion drug testing are generally allowed. Random tests are only allowed if an employee is in a safety-sensitive position.
Alcohol and drug rehabilitation
Employers with 25 or more employees must accommodate employees who wish to participate in a substance abuse treatment program, provided the accommodation does not place an undue hardship on the employer. Employees are not entitled to time off with pay for these purposes although the employee may use accrued sick time. Employers must make a reasonable effort to safeguard employees' privacy.
Unemployment compensation
An individual may be disqualified from receiving unemployment compensation benefits if he or she is discharged for chronic absenteeism due to reporting to work while intoxicated, using intoxicants on the job, or for gross neglect of duty while intoxicated when any of these incidents was caused by an irresistible compulsion to use or consume intoxicants.
Workers’ compensation
Employers are not liable for compensation if an employee's injury is caused by intoxication by alcohol, or the unlawful use of a controlled substance.
Drug-Free Workplace Act
The California Drug-Free Workplace Act of 1990 requires all state contractors and grantees to implement a drug-free workplace policy and establish an employee drug awareness education program. It is similar to the federal law.
San Francisco city ordinance
A San Francisco city ordinance prohibits random drug testing but allows testing for reasonable suspicion if the employee is in a position to harm someone due to being impaired.

Colorado

Workers’ compensation
Colorado workers' compensation law provides that workers' compensation benefits may be reduced by 50 percent when an injury results from the presence in the employee’s system of drugs not medically prescribed or a blood alcohol level at or above .10 percent as evidenced by drug or alcohol test. It is presumed the drug and/or alcohol presence caused the injury except for clear and convincing evidence to the contrary.
Unemployment compensation
If an employee is discharged from employment for the off-the-job or on-the-job use of not medically prescribed controlled substances or intoxicating beverages, that employee may qualify for unemployment compensation benefits only if he or she admits to being an alcoholic or drug addict, has medical confirmation of this status, and enrolls in a rehabilitation program within four weeks of discharge.

Connecticut

Testing of certain drivers, operators
Connecticut law mirrors federal law in providing for the testing of drivers of commercial motor vehicles and some mechanics and forklift operators.
Employers of drivers of commercial motor vehicles operating in intrastate commerce must require drivers to submit to drug testing provided by federal law under 49 USC 3102 and 49 CFR Parts 382 and 391. Testing may also be required of drivers of motor vehicles with a gross vehicle weight rating of ten thousand and one pounds or more but not more than twenty-six thousand pounds, a mechanic who repairs such vehicles, or a forklift operator. In both cases, testing is to be conducted under applicable federal laws (49 USC 3102 and 49 CFR Parts 382 and 391).
Employee drug testing
An employer may prohibit the use of intoxicating substances during work hours and may discipline an employee for being under the influence of intoxicating substances during work hours. Specific requirements must be followed if an employer wishes to take action based on a positive test for recreational marijuana.
Written notification for job applicants
Job applicants may be tested if they receive prior written notification when they apply. An employer who wishes to have the right to rescind a conditional offer of employment based on a positive test for recreational marijuana must have a policy that states it will take adverse action based on recreational marijuana use and make this policy available to applicants at the time a job offer is made.
Applicants must be given a copy of any positive urinalysis drug test result.
Reasonable suspicion and random testing
Employers may test because of reasonable suspicion that an employee is under the influence of drugs or alcohol which could adversely affect job performance.
Employers may drug test randomly only where required by federal law or when an employee is in a safety-sensitive or high-risk position; regulations adopted by the Labor Commissioner designate safety-sensitive and high-risk occupations.
Random testing is also allowed when conducted as part of an employee assistance program in which an employee voluntarily participates.
An employer may take action based on a positive test for recreational marijuana use if the employer has a policy prohibiting such use. A policy is not required if:

• An employer is taking action on the basis of a reasonable suspicion test for marijuana,
• The employer is exempt from the policy requirement, or
• An employee is in a position that is excluded from protections for recreational marijuana use.

Delaware

Delaware law only regulates drug testing for public employees – school bus drivers and Department of Correction employees who hold positions directly related to public safety and security. There are no state laws on drug testing that cover private employers.

District of Columbia

The District of Columbia passed the “Mandatory Drug and Alcohol Testing for the Protection of Children Amendment Act of 2004.” This law makes drug testing mandatory for District of Columbia government applicants and employees in safety-sensitive positions. “Safety-sensitive” means those positions involving direct contact with children or youth, is entrusted with direct care and custody of children or youth, and whose performance of duties may affect the health, welfare, or safety of children or youth. The law allows testing for pre-employment, reasonable suspicion, post-accident, and random testing, with a mandatory 30-day prior written notice before beginning the drug testing program and offers employees one opportunity to seek treatment for a drug or alcohol problem before the programs begins.
An employer may only test a prospective employee for marijuana use after a conditional offer of employment has been extended, unless otherwise required by law. An employer does not need to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or at any time during employment. An employer may deny a position based on a positive test for marijuana.

Florida

The Florida Premium Reduction Act
The Florida Premium Reduction Act is a voluntary law that provides a five percent discount on workers’ compensation premiums to employers who implement and maintain a certified drug-free workplace program in accordance with the standards set forth in the Act. For employers to receive the discount, the Act requires testing for job applicants, reasonable suspicion, routine fitness-for-duty, and follow-up testing. Random testing is permitted but not required. A comprehensive written policy must be implemented and 60 days notice given to employees before implementation.
Unemployment compensation
Benefits may be denied to an applicant who tests positive on a pre-employment drug test, or to an employee who is discharged from employment following a positive, confirmed drug test. The test must be conducted in accordance with standards set forth under Florida’s workers’ compensation law or a more stringent federal law. A positive drug test result constitutes misconduct.
Workers’ compensation
Florida workers’ compensation law denies medical and indemnity benefits if an employee tests positive for alcohol or a prohibited drug, or refuses a test, provided that the employer’s program has been implemented in accordance with the Workers’ Compensation Premium Reduction Act.
Drug-Free Workplace Act
The Florida Drug-Free Workplace Act applies to public employers only. It provides that any state agency may test certain safety-sensitive and special risk employees and job applicants for the use of drugs. The law does not require the testing of employees or applicants, but mandates that any agency which does choose to test do so in accordance with procedures outlined in the Act. The law allows for pre-employment, reasonable suspicion, routine fitness for duty, and follow-up testing. The act requires employers with no drug testing program to provide 60 days notice before commencing testing and employees must receive a written policy.
No employer may discharge, discipline, or discriminate against an employee on the sole basis of the employee’s first positive confirmed drug test, unless the employer has first given the employee an opportunity to participate in at the employee’s own expense or pursuant to coverage under a health insurance plan, an employee assistance program or an alcohol and drug rehabilitation program and the employee has either refused to participate in the employee assistance program or the alcohol and drug rehabilitation program or has failed to successfully complete the program.
A special risk employee may be discharged or disciplined for the first positive confirmed drug test result when illicit drugs are confirmed. “Special risk” means employees who are required as a condition of employment to be certified under chapter 633 (firefighters) or chapter 943 (law enforcement).

Georgia

Workers’ Compensation Premium Reduction Act
The Georgia Workers’ Compensation Premium Reduction Act is a voluntary law that provides a 7.5 percent discount on workers' compensation premiums to employers who have implemented a certified drug-free workplace program. The program must include the following:

1. a written policy statement;
2. substance abuse testing;
3. resources of employee assistance providers;
4. one hour of employee education; and
5. two hours of supervisory training annually.

Hawaii

Substance Abuse Testing
Hawaii's drug testing law includes comprehensive procedural guidelines regarding workplace substance abuse testing. Although the requirements are primarily the responsibility of the laboratory, there are some provisions which directly impact employers.
A laboratory must follow comprehensive procedural guidelines. The individual to be tested must be given a written statement of specific substances to be tested for and a statement that over-the-counter medications or prescribed medications could result in a positive test.
An employer is allowed to perform an on-site pre-employment test but must follow specific procedures. The test must be administered according to the package insert that accompanies the onsite test. The person administering the onsite screening must have been trained.
A positive result from an onsite screening cannot be used to deny employment or result in adverse action unless the employer has the person tested report within four hours to a licensed laboratory for an additional test. That test must be properly conducted under state law; the employee or prospective employee must be given the required written statement noted above and the laboratory must follow procedures required by the state. Neither a laboratory nor an on-site screening location may test for any substance not included on the written statement.
If the employee or applicant fails to take the second test, the employer may take an adverse employment action if the employer gives the individual a written notice stating that:

• The employer followed the proper procedures at the time of the on-site screening test,
• The employee or prospective employee was informed of the right to refuse to submit to the substance abuse test
• If the individual refuses or fails to submit to the substance abuse test, the employer may take adverse employment action against the employee or prospective employee.

Idaho

Employer Alcohol and Drug-Free Workplace Act
If an employer conducts drug testing under the voluntary law:

• An employee who tests positive for drugs or alcohol is at fault of misconduct under the employment security law and will have unemployment benefits denied,
• An employer will have some legal protections when taking action against an employee based on its substance abuse and/or disciplinary policies, and
• An employer will receive a reduction in workers’ compensation policy premiums.

• a confirmed positive drug test or positive alcohol test (as indicated by a test result of not less than .02 blood alcohol content, but greater than the level in the employer’s substance abuse policy),
• refusal to be tested,
• test alteration, or
• submission of a sample that is not his or her own, can be denied unemployment compensation benefits on the basis of misconduct.

Illinois

Illinois Human Rights Act
The Illinois Human Rights Act covers drug testing for employers of 15 or more employees. It allows for drug testing during and after rehabilitation. It holds an employee to the same standards as other employees regardless of illegal drug use or alcoholism, even if drug use or alcoholism are a factor in poor performance. The Act neither encourages nor prohibits other types of drug testing for applicants and employees.
Illinois Drug-Free Workplace Act
Illinois law mirrors the federal Drug-Free Workplace Act for state contractors and grantees.
Unemployment insurance
Workers will be disqualified for consuming alcohol or illegal drugs, non-prescribed prescription drugs, or using an impairing substance in an off-label manner on the employer’s premises during working hours in violation of the employer’s policies, or showing up to work impaired during normal working hours.
Workers’ compensation
The Illinois Workers’ Compensation Commission rules allow for employee drug testing to determine alcohol concentration and the presence of drugs or intoxicating compounds. Procedures for collection and testing need to be followed.

Indiana

Indiana Employment Discrimination Law
An employer that has at least fifteen employees may prohibit the use of illegal drugs and alcohol at the workplace by all employees, may require that employees are not under the influence at work, and may require that employees conform to the federal Drug-Free Workplace Act. An employer may expect an employee who engages in illegal drug use or who is an alcoholic to abide by the same standards for job performance that other employees are held to, even if the poor performance is related to drug use or alcoholism. The Act neither encourages nor prohibits employers from conducting drug tests of job applicants or employees. This provision does not apply to private non-profit organizations.
Unemployment compensation
Indiana’s unemployment compensation law provides that an employee who is discharged for “just cause” will receive reduced unemployment compensation benefits. “Just cause” includes reporting to work under the influence of alcohol or drugs, or consuming alcohol or drugs on the employer’s premises during work hours.
Workers’ compensation
The Indiana workers’ compensation law provides for denial of workers’ compensation benefits to employees whose injury or death was caused by his or her intoxication.
Indiana law provides for denial of workers’ compensation and unemployment compensation benefits if drugs or alcohol were involved.

Iowa

Private-sector drug free workplaces Iowa has a detailed and complex drug testing law. Private sector employers can only test after a written policy is developed and provided to employees. Testing must be conducted within terms of the written policy.
Before testing, an employer must establish a written employee awareness program. It must include an Employee Assistance Program or resource file that provides information on where workers can get help for substance abuse problems. Special provisions apply to testing of minors.
Test types: The law authorizes, pre-employment, reasonable suspicion, and post-accident testing. It also allows unannounced testing of a randomly selected group of workers. Employers may test during and after completion of drug or alcohol rehabilitation.
Pre-employment: Employers may test prospective employees who have made a written or oral application to become an employee.
Reasonable suspicion: Reasonable suspicion tests may be based on evidence that an employee is using or has used alcohol or other drugs in violation of the company’s written policy. The need to test must be based on specific and articulable facts and reasonable inferences drawn from the facts in light of experience. Testing may be based on: • Direct observation of substance abuse while at work, • Impairment due to alcohol or other drug use, • Abnormal conduct, erratic behavior, or significant deterioration in performance while at work, • A credible report of alcohol or drug use from a reliable source, • Evidence of tampering with a drug test, • Evidence that an employee has caused an accident while at work causing sufficient injury or damage to require a report to OSHA, or • Evidence that an employee has made, sold, possessed or used drugs while at work.
Unannounced (random) testing: Unannounced testing may be conducted when workers are randomly selected from pools of employees consisting of the entire population at a particular worksite, the entire full-time employee population at particular worksite, or a pool of employees in a safety-sensitive position.
“Safety-sensitive position” means a job where an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage, including a job with duties that include immediate supervision of a person in a safety-sensitive position. The designation of a safety-sensitive position must be based on job functions, not only the environment in which work is performed.
Post-accident: Employers may conduct drug or alcohol testing in investigating workplace accidents in which the accident resulted in sufficient injury to require a report to OSHA, or resulted in damage to property, including to equipment, in an amount reasonably estimated at the time of the accident to exceed $1,000.
Testing procedures: Specific testing procedures must be followed. These include provisions relating to privacy, sample collection, documentation, and transportation to the testing facility. The employer’s policy must include requirements regarding breath testing devices and qualifications for those administering the tests.
An employer must provide an employee or prospective employee with a list of drugs to be included in the test. An employee must have the opportunity to provide relevant information, including identification of prescription or nonprescription drugs, or other relevant medical information.
Samples may include urine or oral fluids. Hair samples may be used for prospective employees. Sample collection must be performed:

• Under sanitary conditions,
• With respect for the privacy of the individual being tested,
• In a way that precludes contamination or substitution of the sample.

• The test results,
• The employee’s right to obtain a second confirmatory test within seven days of the date the letter was sent,
• The cost of the second confirmatory test.

• A requirement to enroll in employer-provided or approved rehabilitation, treatment or counseling,
• Suspension, with or without pay, for a designated period of time,
• Termination of employment,
• Refusal to hire a prospective employee,
• Other adverse employment action, in conformance with the employer’s written policy, including relevant collective bargaining agreement provisions.

• Must have been employed for at least 12 of the past 18 months,
• Be a first-time violator of the employer’s substance abuse policy, and
• Agree to receive rehabilitation, if required by the employer’s policy.

• When the employee or prospective employee who was tested requests the results in writing,
• When disclosure is required under state or federal law,
• When the information is required for substance abuse evaluation or treatment of the employee.

• Information concerning the recognition of evidence of employee alcohol and other drug abuse,
• Documentation and corroboration of employee alcohol and other drug abuse, and
• The referral of employees who abuse alcohol or other drugs to the employee assistance program or to the resource file maintained by the employer.

• Drug and alcohol testing,
• Taking action on the basis of a positive drug or alcohol test,
• Failure to test for drugs or alcohol,
• Action taken related to a false negative drug or alcohol test result,
• Testing or taking action against an employee or applicant with a confirmed positive test result due to the use of medical cannabidiol.

Kansas

Drug testing guidelines
Under Kansas drug testing laws, while there are no restrictions on the types of testing that may be conducted, there are guidelines governing testing procedures.
Certified laboratories must be used and confidentiality procedures maintained. Employers who conduct on-site testing are exempt from laboratory requirements.
The law neither encourages nor prohibits employers from conducting applicant or employee drug tests or from making employment decisions based on the results.
Workers’ compensation
Kansas law provides for denial of benefits for workers’ compensation where an employee contributed to the injury by use of alcohol or drugs. Refusal to test is not automatic proof of impairment unless there is probable cause to believe an employee was impaired while working.
Unemployment compensation
Kansas unemployment compensation law denies unemployment benefits to those who are discharged for misconduct related to drug or alcohol impairment.
State government employees
Kansas law requires applicants for safety sensitive positions in state government to be subject to drug testing after a conditional offer of employment. The law allows for reasonable suspicion testing.

Kentucky

Employer-facilitated substance use disorder program
The Kentucky Cabinet for Health and Family Services, in conjunction with the Office of Drug Control Policy, is creating regulations for employer-facilitated substance use disorder treatment programs.
The programs support employers who help those in recovery. Employers who comply with the voluntary program would receive some liability protection against lawsuits related to negligent hiring, negligent retention, negligent supervision, or a negligent act by an employee as a result of the employee’s substance use disorder.
Employee requirements
Employees who wish to participate in the treatment program need to:

• Provide the employer with a signed consent which authorizes the employer to provide and receive documentation that confirms the employee’s participation in the program and completion of substance abuse treatment services.
• Comply with the employer’s drug policy.
• Comply with the program’s administrative regulations.

• Develop and distribute a drug policy.

• Require an employee to participate in recommended drug education and licensed substance use disorder treatment services as a condition of employment.
• Comply with the program’s administrative regulations.

Louisiana

Drug testing
Louisiana’s drug testing law places no restrictions on the types of testing that may be conducted, but does provide specific requirements with regard to drug testing procedures.
Certified laboratories must be used and specific drug testing procedures must be followed. An employer can conduct on-site screening tests when there are no negative employment consequences. The state’s drug testing law does not apply to a firm engaged in the exploration, drilling, or production of oil or gas.
An employee has the right to records of a positive drug test. An employer may, but is not required to, allow an employee whose drug test is positive the opportunity to undergo rehabilitation without termination of employment.
Public employee drug testing must be done under a written policy and must comply with the provisions of the state’s drug testing law.
State law prohibits an employer from requiring an employee or applicant to pay for a drug test. However, an employer may withhold the cost of a pre-employment drug test if the employee resigns within ninety days of starting work. The statute applies to public and private employers not subject to a federally mandated testing program.
Unemployment compensation
Louisiana unemployment compensation law provides that benefits may be denied to an employee who is discharged for misconduct. On- or off-the-job drug use, as evidenced by a positive drug test conducted in accordance with the provisions of the law, constitutes misconduct, as does a refusal to test.
Workers’ compensation
Louisiana workers’ compensation law allows that an employer may deny benefits to an employee whose injury is caused by his or her intoxication. A positive drug test conducted in accordance with the law or a positive alcohol test at .08 percent or higher leads to the presumption that the incident was caused by the employee’s intoxication.
Employers may conduct a drug test immediately following a job-related accident. Refusal to submit to a test results in the presumption that the employee was intoxicated at the time of the accident.
Public employee drug testing
A public employer may require post-accident, pre-employment, and reasonable suspicion drug testing, and may require it as part of a rehabilitation program. A public employer may conduct random testing of employees in safety-sensitive or security-sensitive positions. The law also allows for pre-employment and random testing of employees whose principal responsibility is to operate or maintain public vehicles or supervise those who do.
Cost of medical exams/drug tests
An employer may not require an employee or applicant to pay for any medical exam or drug test required by the employer or the cost of any medical records. An employer may not withhold the cost from an employees’ wages. Exception: An employer may require a job applicant or employee to sign a contract providing that the costs of the individual’s pre-employment medical exam or drug test may be withheld from his wages if he resigns within 90 working days.

Maine

Drug testing
Maine has a comprehensive statute which governs workplace drug testing. It applies to public and private employers of one or more employees. All substance abuse testing programs must be approved by the Maine Department of Labor, Bureau of Labor Standards.
The written program must be given to all employees before the program takes effect. Prior to conducting any type of drug testing, an employer with more than 20 employees must provide an employee assistance program (EAP) or participate in an EAP consortium.
Pre-employment testing is allowed after an offer of employment has been made.
A probable cause test is allowed under certain circumstances. Probable cause testing is defined as a reasonable belief in the existence of facts that induce a person to believe that an employee may be under the influence of a substance. It may not be based only on:

• Information from an anonymous informant,
• Information tending to indicate that an employee may have possessed or used a substance off duty, except when the employee is observed possessing or ingesting any substance either while on an employer’s premises or near the premises during or immediately before work, or
• A single work-related accident.

Maryland

Drug testing Maryland allows employers to conduct drug tests when specific procedures are followed. Employers with a legitimate busines purpose may test employees, applicants, and independent contractors for the illegal use of alcohol and drugs.
The Maryland drug testing law indicates that specimens include blood, urine, saliva, and hair. Hair testing may be used only for pre-employment testing.
At the time of the test, at the request of the individual being tested, the individual must be informed of the name and address of the laboratory that will test the specimen.
All testing must be conducted at laboratories certified by the Maryland Department of Health and Mental Hygiene except for a preliminary screening procedure to test a job applicant. Employers must follow specific procedures when doing an in-house preliminary screening of a job applicant.
There are restrictions on the information a laboratory may reveal about the legal use of a medically prescribed drug or nonprescription drug (excluding alcohol) that is not prohibited by state law.
Positive results
When a positive test has been confirmed, the individual tested must be provided with:

• A copy of the test results,
• A copy of the employer’s written substance abuse policy,
• If applicable, written notice of the employer’s intent to take disciplinary action, terminate employment, or change the conditions of employment, and
• A copy of the provisions allowing the employee to request independent testing of the sample, for verification of the test result.

• Holds a permit valid under Maryland law, or
• If located outside of the Maryland, is certified or otherwise approved by the state.

• Is easily portable and can be administered at a worksite or other appropriate collection site,
• Meets the requirements of the federal Food and Drug Administration for commercial distribution, and
• Meets the requirements of the federal Food and Drug Administration for commercial distribution, and • Meets generally accepted cutoff levels such as those in the federal Substance Abuse and Mental Health Services Administration Guidelines for drug-free workplace testing programs.

• In the form of a sealed container or cartridge that has a validity check, a nonresealable closure, or an evidentiary tape that ensures detection of any tampering,
• Is self-contained and individually packaged,
• Is discarded after each test, and
• Does not allow any test component or constituent of a test system to interact between tests.

• Maintains the specimen donor’s identity and confidentiality and the physical integrity of the specimen, and
• Precludes contamination of the specimen.

• A reading of the test manufacturer’s package insert sheet;
• Observing the test manufacturer’s training video or receiving training from the test manufacturer;
• Completing the test manufacturer’s self-administered test; and
• The actual performance of tests and the actual interpretation of the results.

Massachusetts

Massachusetts does not have a drug testing law. However, case law impacts how drug testing can be conducted in the state. Safety-sensitive and reasonable suspicion tests are allowed.
In Folmsbee v. Tech Tool Grinding & Supply, Inc., the court ruled that a company’s drug testing policy was reasonable in light of the nature of the employee’s business, evidence of employee drug use, and the procedures used to guarantee the privacy that were used by the medical center conducting the tests.
An employee had claimed that the mandatory drug testing program interfered with her right to privacy. The court balanced the employer’s legitimate interest in determining the employees’ effectiveness of their jobs against the seriousness of the intrusion on the employees’ privacy.
The nature of the company’s business required extreme alertness and precision, and a slight error could result in harm to employees and customers. The employer had a strong basis for suspecting that employees were using drugs (an owner smelled marijuana smoke, and marijuana cigarette butts had been found in a company restroom). The court ruled that the employee did not have grounds for her claim.
In Webster v. Motorola, Inc., the court ruled that a random drug testing program is reasonable for an employee in a safety-sensitive position, but not for an employee in position that is not safety-sensitive.
A manufacturing company did pre-employment, for-cause, and random testing. Under the random program, each employee was selected at least once in a three-year period. Two employees brought a lawsuit against the company and claimed that drug testing interfered with their right to privacy. The court balanced the employees’ interest in privacy against the employer’s interest in determining whether employees are using drugs. It looked at the nature of the business and the employee’s duties.
One employee’s responsibilities required him to drive a company vehicle 20,000 to 25,000 miles per year. The other employee was a technical editor. The court determined that a company’s general interest in protecting the safety of employees and providing them with a drug-free working environment is not sufficient to justify a random drug testing program. However, a company has an added interest in assuring that an employee not operate a motor vehicle when intoxicated by drugs. This outweighs an individual’s right to privacy.
While a company’s random drug testing policy is permissible for safety-sensitive employees the court held that it is not reasonable for employees that are not in a safety-sensitive position. The technical editor’s job was not sufficiently safety sensitive to justify random drug testing.

Michigan

Unemployment insurance
Michigan law only addresses drug testing in relation to unemployment compensation benefits. An employee may be disqualified for illegally ingesting a controlled substance on the employer’s premises, for refusing to submit to a drug test that was required to be administered in a nondiscriminatory manner, or for testing positive on a drug test that was administered in a nondiscriminatory manner. An individual fired only for using marijuana during personal time may qualify for unemployment benefits, however.

Minnesota

Drug testing
Minnesota’s drug testing law includes significant restrictions on the types of testing that may be conducted, and places specific requirements on drug testing procedures and components of the program.
Testing must be done pursuant to a written drug and alcohol testing policy that contains the minimum information required by state statute. An employer must pay for the test. An employer may not discharge an employee solely on the basis of a first-time positive drug test. The opportunity for rehabilitation must be offered. Job applicants may be tested. Only safety-sensitive employees may be tested randomly. Otherwise, reasonable suspicion and rehabilitative treatment program testing are allowed. An employer may only inquire about an employee's use of over-the-counter or prescription medications after an employee tests positive on a drug test. Unannounced tests can be given for a period of up to two years following completion of a treatment program.
Testing must be conducted at an accredited or certified laboratory. A drug testing laboratory must be certified by the National Institute on Drug Abuse, accredited by the College of American Pathologists under the forensic urine drug testing laboratory program, or licensed to test for drugs by the state of New York, Department of Health, under Public Health Law, article 5, title V, and rules adopted under that law. An alcohol testing laboratory must be licensed to test for drugs and alcohol by the state of New York, Department of Health, under Public Health Law, article 5, title V, and the rules adopted under that law or accredited by the College of American Pathologists in the laboratory accreditation program.
Unless a failure to do so would violate federal law or cause an employer to lose a monetary benefit under federal law, employers may not discriminate against a registered medical marijuana patient based on a positive drug test for cannabis components or metabolites unless the patient used, possessed, or was impaired by medical cannabis at work.
Unemployment compensation
Minnesota’s unemployment compensation law may deny benefits to an employee who has been separated from employment due to a chemical dependency which has been professionally diagnosed, or who is participating in a treatment program, where treatment has failed to control the chemical dependency. Such action indicates that an employee has not made a reasonable effort to retain employment.
Workers’ compensation
Minnesota’s workers' compensation law may deny compensation benefits if the employee's intoxication is the proximate cause of the injury. The employer has the burden of proof.

Mississippi

Voluntary Drug Testing Law
Mississippi’s Voluntary Drug Testing Law is a voluntary law for public or private employers. It allows for pre-employment, reasonable suspicion, and random testing, testing as part of a fitness-for-duty exam, and during and after rehabilitation. On-site tests may be conducted. Employers choosing to comply with its provisions are protected from civil liability.
Under the state’s voluntary law, specific procedures must be followed. A specimen may only be collected by a physician, registered nurse, licensed practical nurse, qualified laboratory employee, or person deemed qualified by the State Board of Health. Collection shall be performed under reasonable and sanitary conditions, and individual dignity must be preserved.
Documentation procedures must be followed. An employer must provide a notice to employees. The notice must include wording from the state statute, found at Rule 53.9.1.
The sample must be collected, stored, and transported to the testing site in a way that reasonably deters contamination or adulteration of the specimen. Testing must conform to scientifically accepted analytical methods and procedures. Confirmation tests must be conducted by a laboratory.
Drug test cheating law Mississippi law prohibits cheating on a drug test. It is against the law to intend to defraud a drug or alcohol test or cause deceitful test results.
It is illegal to:

• Sell, give away, distribute, manufacture, or market human or synthetic urine or bring it into the state with the intent of using it to defraud a drug or alcohol test;
• Attempt to defeat or interfere with the results of a drug or alcohol test by substituting synthetic urine or spiking a urine sample;
• Possess adulterants with the intent to use the substance to adulterate a human urine sample or other human bodily fluid sample with the intent to defraud a drug or alcohol test;
• Sell or market an adulterant that is intended to be used to adulterate a human urine sample or other bodily fluid sample for the purpose of defrauding a drug or alcohol test.

• A heating element or other device used to thwart a drug screening test accompanies the sale, giving away, distribution, manufacture, or marketing of human or synthetic urine.
• Instructions describing a method to thwart a drug test accompany the sale, giving away, distribution, manufacture, or marketing of human or synthetic urine.

Missouri

Drug testing
If an employee is at work with a detectable amount of drugs or alcohol in the employee’s system in violation of the employer’s policy, it is considered misconduct for unemployment insurance purposes.
The employer’s alcohol and controlled substance workplace policy should be posted by the employer, included in an employee handbook, or included in a collective bargaining agreement.
The policy must state that a positive test will result in suspension or termination. Any drug test policy implemented after January 1, 2005, must provide 60 days prior notice before it becomes effective.
Unemployment insurance
Workers will be disqualified for any drug/alcohol use; positive pre-employment drug/alcohol test is considered misconduct.
Workers’ compensation
Missouri’s workers’ compensation law, which is found at Missouri Revised Statute §287.120(6), states:
6.

1. Where the employee fails to obey any rule or policy adopted by the employer relating to a drug-free workplace or the use of alcohol or nonprescribed controlled drugs in the workplace, the compensation and death benefit provided for herein shall be reduced fifty percent if the injury was sustained in conjunction with the use of alcohol or nonprescribed controlled drugs.
2. If, however, the use of alcohol or nonprescribed controlled drugs in violation of the employer’s rule or policy is the proximate cause of the injury, then the benefits or compensation otherwise payable under this chapter for death or disability shall be forfeited.
3. The voluntary use of alcohol to the percentage of blood alcohol sufficient under Missouri law to constitute legal intoxication shall give rise to a rebuttable presumption that the voluntary use of alcohol under such circumstances was the proximate cause of the injury. A preponderance of the evidence standard shall apply to rebut such presumption. An employee’s refusal to take a test for alcohol or a nonprescribed controlled substance, as defined by section 195.010, RSMo, at the request of the employer shall result in the forfeiture of benefits under this chapter if the employer had sufficient cause to suspect use of alcohol or a nonprescribed controlled substance by the claimant or if the employer’s policy clearly authorizes post-injury testing.
4. Any positive test result for a nonprescribed controlled drug or the metabolites of such drug from an employee shall give rise to a rebuttable presumption, which may be rebutted by a preponderance of evidence, that the tested nonprescribed controlled drug was in the employee’s system at the time of the accident or injury and that the injury was sustained in conjunction with the use of the tested nonprescribed controlled drug if:
   1. The initial testing was administered within twenty-four hours of the accident or injury;
   2. Notice was given to the employee of the test results within fourteen calendar days of the insurer or group self-insurer receiving actual notice of the confirmatory test results;
   3. The employee was given an opportunity to perform a second test upon the original sample; and
   4. The initial or any subsequent testing that forms the basis of the presumption was confirmed by mass spectrometry using generally accepted medical or forensic testing procedures.

Montana

Montana law allows drug testing for safety-sensitive positions but also broadens the scope of positions that can be tested. 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.

• 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.

Nebraska

Drug testing law
Nebraska’s drug testing law permits drug and alcohol testing provided certain technical procedures are followed. A positive test result, refusing to be tested, or tampering with a test specimen are all grounds for disciplinary action including termination. The law applies to employers with six or more employees and to state and local governments.
Workers’ compensation
Nebraska’s workers’ compensation law denies benefits if the employee’s injuries were due to intoxication.
Unemployment compensation
Nebraska’s unemployment compensation law denies benefits to employees who are discharged for misconduct, which includes being under the influence of alcohol or a controlled substance not prescribed by a physician while at the worksite or while engaged in work.

Nevada

Workers’ compensation
Nevada’s workers’ compensation law provides that workers’ compensation benefits may not be awarded when an injury occurred while the employee was in a state of intoxication or under the influence of a controlled or prohibited substance unless the employee can prove by clear and convincing evidence that intoxication or being under the influence of a controlled substance was not the proximate cause of the injury. Testing may be performed to determine the presence of drugs or alcohol. The laboratory that conducts the testing must be licensed. The results of the testing must be made available to an insurer or employer upon request, to the extent that doing so does not conflict with federal law.
State employees
Applicants for positions with the state which affect public safety are subject to a pre-employment drug screen. Employees of the state in positions affecting public safety are also subject to drug and alcohol testing. Employees who test positive for the first time may be referred to an employee assistance program. Employees may be disciplined or discharged for subsequent positive tests, for working under the influence, for refusal to test, or for possessing or using controlled substances or alcohol at work.
Marijuana testing
As of January 1, 2020, employers may not (with a few exceptions) deny employment to a prospective employee based on a positive drug test for marijuana.
This does not apply to an employee applying for a position:

• As a firefighter,
• As an emergency medical technician,
• Requiring the employee to operate a motor vehicle for which federal or state law requires the employee to submit to a screening test, or
• That, in the determination of the employer, could adversely affect the safety of others.

New Hampshire

Unemployment compensation
New Hampshire’s unemployment compensation law provides that an employee who has been discharged for intoxication or for use of a controlled drug, to the degree that it seriously hampered or interfered with his or her work, is not eligible for benefits.
Workers’ compensation
New Hampshire’s workers’ compensation law provides that an employer is not liable for any injury to a worker which is caused in whole or in part by the intoxication (from drugs or alcohol) of the employee. The intoxication defense does not apply if the employer knew that the employee was intoxicated.
Deduction for medical exams
Employers may not deduct the cost of medical exams or records required by the employer from the employee’s wages.

New Jersey

New Jersey doesn’t regulate drug testing by statute, but the state’s marijuana laws impact drug testing and court cases have addressed the issue.
Medical marijuana Under the Jake Honig Compassionate Use Medical Cannabis Act, employers must take specific steps when an employee tests positive for marijuana. An employer must offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result. An employer must provide written notice of the right to explain to the employee or job applicant.
An employee or job applicant has three working days after receiving this notice to submit information to explain the positive test result. An employee or applicant may request a confirmatory retest of the original sample, at the expense of the employee or job applicant. As part of an explanation for a positive test result, authorization for medical cannabis or a registry identification card may be presented.
Recreational marijuana Employers must follow specific produres when doing a drug test for marijuana and may not take action based on a positive drug test for marijuana unless:

• There is reasonable suspicion that an employee used marijuana while working,
• The employee is showing signs of intoxication from marijuana use,
• The test is done because of a work-related accident requiring investigation.

1. Should use the least intrusive test method to determine drug use;
2. Must have a policy and practice to maintain the confidentiality of test results;
3. Must warn employees in advance before implementing a drug testing program;
4. Must inform employees about which employees may be subject to testing;
5. Must explain how samples will be analyzed;
6. Must notify employees of the consequences of a positive test or of a refusal to test; and
7. Must warn employees of the lingering effects of drug use. (For example, marijuana may stay in the system for days, particularly for chronic users.)

New Mexico

Workers’ compensation
New Mexico’s workers’ compensation law allows for denial of benefits to an employee if the injury was caused by the employee’s intoxication or being under the influence of a controlled substance not prescribed. The law also provides for a reduction in benefits of 10 to 90 percent when alcohol or drugs contributed to the injury or death of the employee.
Any tests conducted to determine if an employee was under the influence must conform with standard testing procedures generally accepted in the medical community. A test must be performed by a certified laboratory. Urine, breath, or blood testing methods may be used. No compensation shall be paid if the worker refuses to test or refuses to release test results.
The employer must pay for the test and cannot use the test as evidence in a criminal proceeding against the worker. Workers’ compensation benefits will not be reduced if an employer has actual or constructive knowledge of the worker’s intoxication or that a worker is under the influence and has reasonable opportunity to take appropriate measures, but fails to take those measures.
In order to claim a reduction of benefits, an employer must implement a written policy that declares a drug- and alcohol-free workplace, which may include post-accident testing. An employer must give employees notice that workers’ compensation benefits may be reduced in the event intoxication or being under the influence contributes to a workplace injury.

New York

On-site drug testing restrictions
In New York, a company doing on-site drug testing must comply with the state’s clinical laboratory licensing law, which is overseen by the Department of Health.
An employer can do drug testing if a Limited Service Laboratory Registration Certificate or New York State clinical laboratory permit is held.
An employer looking to receive a Limited Service Laboratory Registration Certificate must apply using materials from the state. Employers can submit the completed application to the Clinical Laboratory Evaluation Program.
Marijuana drug testing restrictions
Drug testing for marijuana is limited under the Marijuana Regulation and Taxation Act. An employer may test for cannabis when an employee shows specific signs of impairment or when testing is required by federal or state law. An employer required to test drivers of commercial motor vehicles under state or federal law may continue to test as required under those laws.
When there is no requirement to test for cannabis, a test for cannabis cannot serve as a basis for an employer’s conclusion that an employee was impaired by use of cannabis.
Workers’ compensation
New York’s state workers’ compensation law provides that no benefits may be awarded to the employee when an injury is caused solely by the employee’s intoxication from alcohol or a controlled substance. There is a statutory presumption that the injury did not result solely from intoxication.
For-hire motor carrier and driver testing Effective February 3, 2021, motor carriers are required to conduct pre-employment and random drug and alcohol testing. All drivers of any for-hire vehicle with a seating capacity of nine or more passengers (including the driver) must be tested. Testing is required regardless of commercial driver’s license endorsement.
Testing must be done under the requirements of Part 382 of Title 49 of the Code of Federal Regulations. At a minimum, drug testing must be administered in conformance with the procedures under 49 CFR Part 382.
Drivers shall be included in the random testing pool. Drivers shall submit to testing when selected, as required in 49 CFR Part 382.
Drivers are prohibited from:

• Consuming a drug, controlled substance, or intoxicating liquor, or being under the influence of a drug, controlled substance, or intoxicating liquor, within eight hours before going on duty or operating a vehicle,
• Consuming a drug, controlled substance, or intoxicating liquor while on duty or operating a vehicle,
• Consuming a drug, controlled substance, or intoxicating liquor while on duty or operating a vehicle,
• Possessing a drug, controlled substance, or intoxicating liquor while on duty or operating a vehicle. (This does not apply to a drug, controlled substance, or intoxicating liquor being transported as part of a shipment or personal effects of a passenger or an alcoholic beverage in a sealed container.)

North Carolina

Drug testing law North Carolina’s drug testing law does not restrict the types of testing that may be conducted, but does require that certain procedures be followed with regard to the actual drug testing process.
Job applicants may be tested on-site, but a positive test must be confirmed at an approved laboratory. All other employee drug testing must be conducted at approved laboratories. The laboratories must follow certain drug testing procedures.
The applicant or employee may have a confirmed positive sample retested at an approved laboratory. This request must be made in writing. The applicant or employee must pay for the retest.
Under the Controlled Substance Examination Regulation Act, the examiner must give the applicant or employee a notice of rights. The examiner must also give employees and applicants a notice of rights if a test is positive. Sample forms are on the state’s Controlled Substance Forms website.
North Carolina Administrative Code Title 13 Chapter 20 provides further clarification of definitions and procedures as found in the Controlled Substance Examination Act G.S. Chapter 95 Article 20.
Unemployment compensation North Carolina’s unemployment compensation law provides that an employee discharged from work for misconduct may be denied benefits. Misconduct includes reporting to work significantly impaired by alcohol or illegal drugs, consuming alcohol or illegal drugs on the employer’s premises, or being convicted for manufacturing, selling, or distributing a controlled substance while employed. In addition, an individual is ineligible for benefits if he or she tests positive for a controlled substance if the test is performed in accordance with applicable law, if the test is required as a condition of hire, and if the job would be suitable work for the individual.
Workers’ compensation North Carolina workers’ compensation law denies compensation benefits if the employee’s injury or death is proximately caused by his or her intoxication, provided the intoxicant was not supplied by the employer; also if the employee was under the influence of non-prescribed controlled substances.

North Dakota

Workers’ compensation North Dakota’s workers’ compensation law provides that a work-related injury is not compensable if the injury was caused by the use of intoxicants or controlled substances. Alcohol or drug testing is authorized when a doctor or employer has a reasonable suspicion that the employee’s work injury was caused by the employee’s use of alcohol or a controlled substance. A positive drug or alcohol test at or above the levels determined in the U.S. DOT’s drug and alcohol testing regulations creates a rebuttable presumption that the injury was due to impairment from the use of alcohol or drugs. A refusal to submit to a drug test results in forfeiture of all benefits.

Ohio

Drug-free Safety Program
Employers may be granted a premium rebate for implementing a strategy addressing workplace use and misuse of alcohol and other drugs. Employers must complete an application and Safety Management Self-Assessment in order to participate. Basic and Advanced level programs are available. Pre-employment, reasonable suspicion, post-accident, return-to-duty, and follow-up testing are required at both levels. Random testing is also required at the Advanced level. Additional requirements apply to public employers.
Workers’ compensation
According to the revised statute, it will be presumed that an employee’s work-related injury is caused by intoxication or drug use if within 8 hours of injury the breath level or blood alcohol is equal to or in excess of established levels, or if within 32 hours the employee tests positive for certain drugs. The law sets standards for a qualifying test and reasonable cause for suspicion. The employer must post a notice to employees informing them that a positive test or refusal to test may affect their ability to receive workers’ compensation benefits. If the work-related injury is caused by drug use or intoxication, benefits may be denied. The employee can rebut the presumption by providing proof they were not under the influence or that they were taking prescription medication under their doctor’s care.

Oklahoma

Drug testing
Oklahoma’s drug testing law applies to public and private employers and permits pre-employment, reasonable suspicion, post-accident, and post-rehabilitation testing. Random testing is allowed although there are some restrictions for public employers.
A public or private employer may request or require an employee or all members of an employment classification or group to undergo random drug or alcohol testing and may limit random testing programs to particular employment classifications or groups.
A public employer may require random testing only of employees who:

• are police or peace officers,
• have drug interdiction responsibilities,
• are authorized to carry firearms,
• are engaged in activities which directly affect the safety of others,
• are working for a public hospital or work in direct contact with inmates in the custody of the Department of Corrections or work in direct contact with juvenile delinquents or children in need of supervision in the custody of the Department of Human Services.

• A statement of the employer’s policy respecting drug or alcohol use by employees;
• Which applicants and employees are subject to testing;
• Circumstances under which testing may be requested or required;
• Substances which may be tested. It shall be sufficient for an employer to state in the written policy that the substances tested for shall be drugs and alcohol;
• Testing methods and collection procedures to be used;
• Consequences of refusing to undergo testing;
• Potential adverse personnel action which may be taken as a result of a positive test result;
• The ability of an applicant and employee to explain, in confidence, the test results;
• The ability of an applicant and employee to obtain copies of all information and records related to that individual's testing;
• Confidentiality requirements; and
• The available appeal procedures.

• Hand-delivery of a paper copy of the policy or changes to the policy;
• Mailing a paper copy of the policy or changes to the policy through the U.S. Postal Service or a parcel delivery service to the last address given by the employee or applicant;
• Electronically transmitting a copy of the policy through an e-mail or by posting on the employer’s website or intranet site; or
• Posting a copy in a prominent employee access area.

Oregon

Drug testing
If the employer has reasonable grounds to believe that the individual is under the influence of intoxicating liquor, the employer may require, as a condition for employment or continuation of employment, the administration of a blood alcohol content test by a third party or a breathalyzer test. The employer shall not require the employee to pay the cost of administering any such test.
An individual is “under the influence of intoxicating liquor” when the individual’s blood alcohol content exceeds the amount prescribed in a collective bargaining agreement or the amount prescribed in the employer’s work rules if there is no applicable collective bargaining provision.
In addition, the way drug testing is conducted is regulated under the state’s Public Health, Housing, and Environment statutes. An employer doing on-site testing must register with the Department of Human Services and pay an annual $50 filing fee. Tests must be administered according to the Food and Drug Administration package insert that accompanies the test. Those who administer the tests must be trained in the use of on-site screening tests by the manufacturer. If the test is positive, and the positive test result is may result in adverse employment action, the specimen shall be submitted to a licensed clinical laboratory for confirmation before the on-site test result is released.
Workers’ compensation
Oregon’s workers' compensation law denies workers' compensation benefits when an employer shows, by a preponderance of the evidence, that a major contributing cause of an employee's injury was the consumption of alcoholic beverages or the unlawful use of controlled substances, unless the employer permitted or knew of the consumption.
Unemployment compensation
Oregon’s unemployment compensation law denies unemployment compensation benefits if the employee is discharged for failing to comply with a reasonable drug-free workplace policy which may include drug testing. Benefits may also be denied if an employee is discharged for absences or tardiness due to alcohol or illegal drug use unless the employee was participating in a recognized rehabilitation program at the time or, or is participating within ten days of the discharge or suspension.

Pennsylvania

Workers’ compensation
Pennsylvania’s workers’ compensation law states that compensation can be denied if an injury or death was caused by intoxication or the illegal use of drugs. The burden of proof is on the employer. In cases where the injury or death is caused by intoxication, no compensation may be paid if the injury or death would not have occurred had the employee not been intoxicated.
Unemployment insurance
Workers will be disqualified for failure to submit to and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy, provided that the drug test is not requested or implemented in violation of the law or a collective bargaining agreement.
Pre-hire marijuana testing
It is unlawful for employers in Philadelphia to require a pre-employment marijuana test as a condition of employment. There are exceptions for certain safety-sensitive positions, including law enforcement positions and positions requiring a commercial driver’s license. There is also an exception for positions requiring care of children, medical patients, or disabled individuals.
Unemployment Board Case: CBD and Unemployment Insurance
In a 2020 case, the Pennsylvania Unemployment Compensation Board of Review ruled that an employee fired for using CBD was eligible for unemployment benefits after her employer failed to produce drug test results during unemployment proceedings.
The employee, who admitted to using cannabidiol (CBD) oil to treat cancer symptoms, was told that she failed a random drug test and was terminated. The employer cited the employee’s own admission as evidence but did not produce the drug test results during the proceedings.
The board ruled that the employer was unable to prove that the use of CBD oil would impact the employee’s ability to perform her job safely.

Rhode Island

Drug testing law
Rhode Island has a restrictive drug testing law. Pre-employment and reasonable suspicion testing is permitted, but other testing is not allowed. Some industries are exempt from state law.
Types of testing
Pre employment: Pre-employment tests are allowed after an offer of employment has been made and the offer has been conditioned on the applicant’s negative test result. An employer is not required to comply with these conditions of testing to the extent they are inconsistent with federal law.
The sample must be given in private and positive tests must be confirmed by a certified laboratory.
The pre-employment testing authorized by state law does not apply to state or municipal job applicants, except for law enforcement and correctional officers, firefighters, or positions where testing is required under federal law or required for the continued receipt of federal funds.
Reasonable suspicion: A test may be conducted when the employer has reasonable grounds to believe that an employee may be under the influence of a controlled substance which is impairing his or her ability to perform a job.
The “reasonable grounds” test must be based on:

• Specific aspects of the employee’s job performance, and
• Specific contemporaneous documented observations concerning the employee’s:
  • appearance,
  • speech, or
  • behavior.

South Carolina

Drug-Free Workplace Act
South Carolina’s Drug-Free Workplace Act requires that every individual or business receiving a state grant or state contract for $50,000 or more must implement a drug-free workplace program in accordance with the state Drug-Free Workplace Act. Requirements include establishing and distributing a written substance abuse policy to all employees and establishing an employee drug education awareness program.
Workers' Compensation Premium Reduction
Program South Carolina’s Workers' Compensation Premium Reduction Program provides for a five percent discount on workers' compensation premiums to employers who voluntarily establish a drug-free workplace program in compliance with the act. At a minimum, the requirements include a written substance abuse policy statement, employee notification of the program, confidentiality procedures, and random sampling of all employees.
Workers' compensation South Carolina’s workers' compensation law allows the denial of compensation benefits if the employee's injury or death was occasioned by his or her intoxication.
Unemployment benefits
Workers may be denied benefits for various reasons, including failing a drug test, as described in state statute 41-35-120, Disqualification for benefits.
Drug Test Adulteration Law
South Carolina’s Drug Test Adulteration law states it is unlawful for a person to 1) sell, give, market, distribute, or transport urine with the intent to defraud a drug or alcohol screening test, 2) attempt to defeat a drug or alcohol test by substituting or spiking the sample with an adulterant, 3) adulterating a urine or other bodily sample with the intent to defraud an alcohol or drug test, or 4) possess or sell adulterants which are intended to be used to adulterate bodily samples for the purpose of defrauding a drug or alcohol test.

South Dakota

Workers’ compensation
South Dakota’s workers’ compensation law provides that an employee may be disqualified from receiving workers’ compensation benefits if his or her injury or death was due to willful misconduct, including intoxication or the illegal use of drugs.
State employees
Testing is authorized for state employees in certain safety-sensitive positions if there is reasonable suspicion of illegal drug use.
Driver disqualification
A driver is disqualified from driving a commercial motor vehicle (CMV) for at least one year:

• If convicted of a first violation of driving or being in control of a commercial or noncommercial motor vehicle while under the influence of alcohol or any controlled drug or substance,
• For refusing to submit to chemical analysis for purposes of determining the amount of alcohol or drugs in a person’s blood or other bodily substance while driving a commercial or noncommercial motor vehicle.

Tennessee

Workers’ Compensation
Benefits may be denied to an employee whose injury or death is due to intoxication or the use of illegal drugs. Refusal to test presumes that the proximate cause of injury was drug or alcohol use and may result in denial of benefits.
Employers who implement a Drug-free Workplace Program under the rules adopted by the Bureau of Workers’ Compensation are eligible to receive a five percent discount on workers’ compensation insurance.
Drug-free Workplace Program
Under the voluntary Tennessee Drug-Free Workplace Program (Title 50, Chapter 9 of the Tennessee Code), an employer receives:

• A premium discount on workers’ compensation insurance.
• A shift in the burden of proof for workers’ compensation claims that involve a positive alcohol or drug test. Workers’ compensation benefits could be denied to an injured employee who fails a post-accident drug or alcohol test, unless the employee overcomes the presumption that drugs or alcohol were the cause of the injury.
• A presumption that an employee who is fired because of a positive drug or alcohol test has been discharged for cause. This could disqualify an employee from receiving unemployment insurance benefits.

Texas

Texas Drug Test Falsification law Texas Drug Test Falsification law provides that it is illegal to manufacture, deliver, own, or use a substance or device designed to falsify drug test results.
Workers’ compensation An insurance carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication.
Protection of Laborers An employer may adopt a policy prohibiting employment of an individual who currently uses or possesses a controlled substance, other than the use or possession of a drug taken under supervision of a licensed health care professional or authorized by federal or state law.
Unemployment Insurance Specific information is needed if an employer wishes to challenge an employee’s unemployment insurance claim after an employee is terminated because of a positive drug test.
Under a TWC precedent case, Appeal No. 97-003744-10-040997, employers need to present the following information to establish that a claimant’s positive drug test result constitutes misconduct:

1. A policy prohibiting a positive drug test result, receipt of which has been acknowledged by the claimant;
2. Evidence to establish that the claimant has consented to drug testing under the policy;
3. Documentation to establish that the chain of custody of the claimant’s sample was maintained;
4. Documentation from a drug testing laboratory to establish than an initial test was confirmed by the Gas Chromatography/Mass Spectrometry method; and
5. Documentation of the test expressed in terms of a positive result above a stated test threshold.

Utah

Voluntary Drug and Alcohol Testing Act
Utah’s Voluntary Drug and Alcohol Testing Act provides that no cause of action may be brought against any employer who establishes a drug and alcohol testing program in compliance with the act.
Employers are specifically authorized to conduct any type of testing in order to maintain the safety of employees and the public or to maintain productivity and quality of services and products. Reasonable suspicion and post-accident testing are mentioned, as well as testing in incidents of workplace theft. Testing of applicants as well as employees is allowed.
If a testing program is implemented, all management personnel must also be subject to testing.
The law requires that specific requirements be met with regard to drug testing procedures. Collection must be performed under reasonable and sanitary conditions, and privacy concerns must be considered. The sample must be collected, stored, and transported to the testing site in a way that reasonably deters contamination or adulteration of the specimen. Testing must conform to scientifically accepted analytical methods and procedures. A certified lab must test a urine sample before it can be considered a failed test and used as a basis for adverse action by an employer.
The Act does not apply to public employers.
Workers’ compensation Utah’s workers’ compensation law provides for denial of benefits when the major contributing cause to an employee’s injury or occupational disease is the use of illegal substances, the intentional abuse of prescribed substances, or intoxication. Benefits are denied unless the employer permitted, encouraged, or had actual knowledge of such behaviors.
Defrauding an alcohol or drug screening It is illegal for a person to distribute, possess, or sell synthetic urine or an adulterant with the intention that it be used to defraud an alcohol or drug screening. It is also illegal to use synthetic urine, an adulterant, or another person’s urine or body fluid to defraud a drug or alcohol test.
An entity collecting drug testing specimens for an employer shall report information about adulterated or synthetic urine to the employer and the Department of Public Safety.

Vermont

Drug testing law Vermont’s drug testing law applies to private and public employers. It significantly restricts workplace drug testing.
Pre-employment testing is permitted provided that the applicant has been given a conditional offer of employment and prior written notice of the testing procedures and drugs to be tested for.
For-cause testing of employees is permitted if the employer has probable cause to believe that an employee is under the influence of drugs while on the job.
Employees testing positive must be given the opportunity to participate in an Employee Assistance Program. The employee may not be terminated for a positive test if the employee agrees to participate in and successfully completes the EAP. A second positive test after completion of EAP is grounds for termination.
The law also includes comprehensive requirements relating to drug testing procedures.
Workers’ compensation Benefits are not allowed for injury caused by or during an employee’s intoxication. The burden of proof lies with the employer.

Virginia

Unemployment compensation
Virginia’s unemployment compensation law provides that an individual does not qualify for benefits during any week that he or she tests positive for drugs in connection with a suitable offer of work. An employee is disqualified from eligibility for benefits if he or she is discharged for a confirmed positive drug test for a non-prescribed controlled substance, as evidenced by a positive, confirmed USDOT qualified drug screen conducted in accordance with the employer’s bona fide drug policy.
Workers’ Compensation Premium Discount Program
Virginia’s Workers’ Compensation Premium Discount Program provides that insurers providing coverage under the workers’ compensation statute must provide premium discounts of up to five percent to every employer who institutes a drug-free workplace program which meets the criteria established by the insurer.
Workers’ compensation Virginia’s workers’ compensation law denies benefits to an employee whose injury or death is caused by his or her intoxication or use of a controlled substance. A positive drug or alcohol test result creates a rebuttable presumption that the employee was intoxicated or using drugs at the time of his or her injury or death.
Drug-free Workplace Act Virginia’s Drug-free Workplace Act requires all public bodies to include in every contract over $10,000 the following provisions: 1) the contractor must provide a drug-free workplace for the contractor’s employees, 2) s/he must post a statement explaining the drug-free workplace policy and the consequences for policy violations, 3) s/he must state in all solicitations or advertisements for employees that the contractor maintains a drug-free workplace, and 4) s/he must include the drug-free workplace clauses from this Act in every subcontract or purchase order over $10,000 so that the provisions are binding on the subcontractor or vendor.

Washington

Unemployment compensation
Washington’s unemployment compensation law provides that alcoholism does not constitute a defense to disqualification from benefits due to misconduct.
State employees State agencies can test specific employees in safety-sensitive positions based on reasonable suspicion, which must be stated in writing. The agency must have a comprehensive written policy.

West Virginia

Drug testing
Under the West Virginia Safer Workplace Act, employers may require mandatory drug testing of applicants and employees. The Act provides liability protections to employers that conduct testing in compliance with the Act. Under the Act, testing must conform to comprehensive requirements. Specific testing procedures must be followed and positive test results must be confirmed.
Employers that require drug tests must adopt and publish a written drug-testing policy. The policy must be distributed to every employee subject to testing.
An employer must pay the actual costs of required drug and/or alcohol testing for employees and applicants. If an employee is being tested at a site outside the normal work site, the employer must provide transportation or pay for transportation costs.
Regarding the scheduling of tests, the Act requires that testing occur during, or immediately before or after, a regular work period. Testing is worked time for purposes of compensation and benefits for current employees.
Within the terms of the written policy, an employer may test under a variety of circumstances. These include:

• Deterrence or detection of possible illicit drug use, possession, or manufacture of illegal drugs, or the abuse of alcohol or prescription drugs,
• Investigation of possible individual employee impairment,
• Investigation of accidents in the workplace or incidents of workplace theft or other employee misconduct,
• Maintenance of safety for employees, customers, clients, or the public,
• Maintenance of productivity or quality, or security of property or information.

Wisconsin

Public Works Projects
An employer needs to have a written program for the prevention of substance abuse in place before beginning work on a public works project. Under the program, employees must submit to pre-employment, random, reasonable suspicion, and post-accident drug and alcohol testing. Specific testing procedures must be followed.
Workers’ compensation
Wisconsin’s workers’ compensation law stipulates that no compensation or death benefits shall be payable to the injured employee or a dependent of the injured employee if an employee violates the employer’s policy concerning employee drug or alcohol use and is injured, and if the violation is causal to the employee’s injury. An employer remains liable for medical costs.

Wyoming

Workers’ compensation
Employers can obtain a premium discount if they comply with a drug and alcohol testing program approved by the Division of Workers’ Compensation. Program requirements include pre-employment, post-accident, random, and reasonable suspicion testing. Training is required for employees and supervisors.
Wyoming’s workers' compensation law also denies benefits to an employee who is injured or killed in an accident while intoxicated or under the influence of a controlled substance not prescribed by a health care provider.