We, at Rapid Detect, Inc can’t stress enough on how important it is to know and comply with the state laws wherever your business operates. Yes, there are some federal requirements and regulations when it comes to performing some jobs, but each state has its own set of regulations in addition to what the federal policy says, but why stop there when there are cities across the nation that has their own little rules on top of those when it comes to drug testing? Overall, drug testing laws try to cover three things: 1) who can be tested and under what circumstances (pre ‐ employment, random, etc.), 2) how testing is to be conducted, & 3) what are the procedures to be observed by the testing entity.
These laws are to protect everyone involved, mainly between the employee and the employer. If the drug tests come back negative in favor of the employee, then that person will get to keep his or her job. If it comes back positive, then the employee will have some explaining to do that might also mean termination of employment or at least some sort of rehab. Granted, it could be a simple case of prescription medicine and to verify, any employee should ask for a GC/MS test. That’s a test the person will have to pay for out of his or her own pocket but may be worth it considering both your reputations are on the line. Again, understanding state laws and how they fit into your policy is critical to the success and cost‐effectiveness of any drug testing program.
Let’s face it, the federal government requires testing by employers in a few safety-sensitive industries (i.e. transportation, aviation, and the Department of Defense), federal law doesn’t otherwise require – or prohibit – administering drug tests. For the most part, state and local laws dictate whether or not an employer may test employees for drugs. That’s why we’ve put together this “little” (ha ha) list of state laws for the private sector business’s who wish to either implement a drug and alcohol testing policy or brush-up on their knowledge. Please keep in mind that this is just a quick overview and it’s your responsibility to get all the details. With that being said, proceed at your own risk.
Alabama – Any employer that conducts drug testing must post its policy allowing employees to see it at least 60 days prior to the policy start date. Employees who test positive on their drug test have up to five days to contest or explain the result. State laws also require employers to use certain procedures for gathering specimens, testing, maintaining confidentiality, and so on.
Alaska – Any employer that conducts drug testing must adopt and distribute a written drug test policy to all employees at least 30 days before the policy is to take effect. The information about the testing program should include details about the consequences of testing positive or refusing to submit to testing. Alaska law also specifies the procedures that employers must use for gathering specimens, testing, and maintaining confidentiality. Any employee testing positive must be given up to ten days allowing him or her a chance to explain the result in a confidential setting and must hold the meeting within 72 hours after the employee’s request or before taking any adverse job action against the employee. **Legalized Recreational Marijuana**
Arizona – Any Arizona employer that wishes to conduct drug testing must adopt a policy and provide it to employees before testing. The policy must provide specified information about the testing program, including the consequences of testing positive or refusing to submit to testing. Furthermore, the state law also specifies the procedures the employer must use in terms of gathering specimens, testing, and maintaining confidentiality. If any employee tests positive, that result must be confirmed by a second test using a different chemical process other than the initial screening.
Arkansas – All employees must be given a copy of the drug or alcohol testing policy no less than 60 days prior to when the program is expected to start. Should an employee test positive on his/her drug test, that person has five days to contest or explain the result. The state laws also require employers to use certain procedures for gathering specimens, testing, maintaining confidentiality, and so on.
California – It is legal to give drug tests to any incoming employees, but suspicion testing, such as random testing, is restricted by case law. Employers must justify all testing based on suspicion of drug use and a belief that an employee is incapable of properly performing his or her job due to drug use. A legitimate business necessity could be a concern for the safety and health of the workforce and/or general public.
Colorado – Does not have a statutory “blueprint” governing workplace drug testing. The state has not enacted the circumstances in which a private employer may or may not require drug testing, the procedures that must be followed, and so on. **Legalized Recreational Marijuana**
Connecticut – Notification for pre‐employment testing is required. Any random testing is limited to workers in safety‐sensitive positions, post‐accident testing is allowed if there is reasonable suspicion of drug use, and reasonable suspicion testing can only be conducted if it is believed that the worker is incapable of properly performing their job as a result of the suspected drug use. On-site testing is permitted as long as reliable methodology is used and all initial positive tests are confirmed. All positive initial tests must be confirmed by a reliable methodology determined by the Commissioner of Health Services. Any direct observation of a collection is prohibited. Finally, employees must be given the opportunity to submit a written statement explaining the test results if the employee disagrees with any information in the file.
Delaware – Random testing is for safety‐sensitive positions only. Otherwise, it has no restrictions on drug testing in private employment. However, even though state law doesn’t prohibit drug testing of employees or applicants, an employer still might violate the law in the way it conducts a test or chooses the employees to test.
Florida – Employers who currently have a drug-free workplace program are required to drug test applicants who have received a conditional offer of employment. If the employer requires their applicants to take a drug test, it must include a notice in its job announcements or ads regarding the testing requirement.
Georgia – Employers who have a drug-free workplace program are required to drug test applicants who have received conditional offers of employment. Additional limited testing is allowed IF it is conducted on the basis of reasonable classifications of job positions. For example, an employer that doesn’t want to test every job applicant could instead test only those applicants whose jobs would require potentially dangerous activities (such as operating heavy machinery or carrying a weapon). Also if the employer requires applicants to take a test, it must include a notice in any type of job announcements or ads regarding the testing requirement.
Hawaii – Drug tests are not medical examinations. An employer who wants to drug test their employees or applicants must provide advance notice listing all the substances that will be tested for along with a list of the prescription and/or nonprescription medications that could cause a positive test result. The employer may not test for any substance that doesn’t appear on the list. If the employer uses an on-site screening test, they must follow the instructions on the package. If an employee or applicant tests positive in an on-site test, the employer must advise them to go to a licensed laboratory for a follow-up test to be taken within four hours of the initial. If he or she doesn’t go to the lab, the employer has the right to fire, refuse to hire, or take other adverse action against the employee, but only if the employer provided written notice that:
- The employer followed the required procedures for the on-site test.
- The employee or applicant could refuse to take the test.
- If the employee or applicant refused or failed to take the test, the employer could take adverse action.
Employers must pay all costs of drug testing, including the cost of confirming laboratory tests while maintaining the confidentiality of drug test results.
Idaho – Employers are allowed to drug test applicants as a condition of employment only if they have a written drug testing policy available for applicants to review. Any applicant who doesn’t accept the job because the employer requires drug testing may lose eligibility for unemployment benefits. In this situation, the applicant could be deemed unwilling to accept suitable work, and therefore not fully available and searching for a new job. Any drug or alcohol testing by an employer of current employees shall be deemed work time for purposes of compensation and shall be paid by the employer.
Illinois – State law doesn’t encourage or prohibit testing. In Illinois, an employer is to adopt or administer reasonable policies or procedures designed to ensure that an individual is no longer engaging in the illegal use of drugs. However, the state’s discrimination law explicitly states that it is not illegal for employers to require drug tests of employees who have been or are in a drug rehabilitation program.
Indiana – This state has statutes that lay out the blueprints to when an employer may and may not require drug testing. Fortunately / unfortunately (depending on which side you are on) in Indiana, some employers perform drug screening when an employee is injured in an accident. On the flip side, it is not illegal for employers to require drug tests of employees who have been or are in a drug rehabilitation program.
Iowa – An employer may require applicants to take a drug test as a condition of employment. The employer must have a written drug testing policy available along with an Employee Assistance Program (EAP) or notice of the availability of such services. The employer must also allow up to 7 days for a confirmatory retest at the employee’s request and expense. The law requires employee and supervisor training and grants reasonable suspicion testing only when impairment from drug use is also suspected. Post‐accident testing can only be conducted when an injury occurs that requires an injury report or results in property damage in excess of $1,000.
Kansas – Kansas is one of only a few states that have no law addressing drug testing in private employment. However, certain state employees are covered. This means that drug testing is not prohibited or restricted, unless it violates other legal provisions, such as a law prohibiting discrimination. Should you need to sign up for Workers’ Compensation, you will be asked to perform a drug test.
Kentucky – Employees don’t have to adopt a drug-free or alcohol-free program. If they do, however, it must include both drug and alcohol testing. By doing so, it allows employers to qualify for a discount on their workers’ compensation premiums. They must test employees:
- on reasonable suspicion of drug use
- following a workplace accident that requires medical care for at least one person
- as a follow-up to an Employee Assistance Program (EAP) / rehab program for drug use
- as selected in a statistically valid, unannounced, random selection program.
As far as alcohol testing, employers must test after making a conditional job offer to an applicant. They must test employees for alcohol:
- on reasonable suspicion of alcohol use
- following a workplace accident that requires medical care for at least one person, and
- as a follow-up to an Employee Assistance Program (EAP) or a rehabilitation program for alcohol use.
Louisiana – The state law allows employers to require applicants to take a drug test as a condition of employment. To do so, the employer must use certified laboratories and specified procedures for testing if it will base its hiring decisions on the results of the test. An employee with a confirmed positive drug test result may request all records relating to the test within seven working days. Although it is not required for the employer to allow the employee to undergo rehabilitation and may even terminate the employment.
Maine – As part of the drug testing regulations, employers are required to use a set of certified drug testing laboratories certified by the Department of Health and Human Services. Employers may not require employees to sign consent forms, but an Employee Assistance Program (EAP) is required. Random testing is limited to safety‐sensitive positions or per union contract. The employer may require an employee to take a drug test only if one of the three conditions applies:
- There is probable cause to believe that the employee is under the influence of drugs. This belief may not be based solely on the statement of an anonymous informant, a report of the employee’s off-duty possession or use of drugs (unless it occurred on or near the employer’s premises, during or right before working hours) or a single accident. The person who decides that there is probable cause to test must put the facts on which that decision is based in writing and give a copy to the employee. An employer may require an employee to take a drug test if a supervisor, company security personnel, or a licensed physician or nurse, has reasonable grounds to believe that the employee is under the influence of drugs.
- If the employee is in rehabilitation, treatment, or is returning to work following a positive test result. An employer may require an employee who returns to work after a positive drug test to take another drug test. This test must take place at least 90 days after the employee’s previous positive test, and not more than one year after the previous test. If an employer wants to test outside of this time frame, it must have another justification. However, the employer may not require such testing itself, and the program may not share the results of such testing with the employer.
- The employer has set up a random testing program, but only if all of the following state requirements are met:
- Must have at least 50 employees not covered by a collective bargaining agreement.
- The testing policy must be developed by a committee that includes a medical professional and at least ten employees.
- The labor department must approve the policy.
- An employer may not discipline, terminate, or take other negative action against an employee for serving or not serving the committee that develops the testing policy.
- Employees must be selected for testing by a third party outside the employer’s influence, and the lists of which employees are tested remain classified.
- Employees covered by a collective bargaining agreement may not be included unless the agreement so provides.
Maryland – Employers are allowed to require applicants to be drug tested. If the initial result of an applicant’s test is positive for drugs, and the applicant voluntarily discloses that he or she is taking a legally prescribed medication, the employer may make a job offer conditional on a laboratory’s confirmation on the test results. However, any employer who requires a drug test must have their samples tested at a certified laboratory. State law dictates the procedures for testing, confidentiality, and so on. An employee who tests positive must be given:
- a copy of the test results
- a copy of the employer’s written testing policy
- written notice of any adverse action the employer plans to take based on the results
- statement of employee’s right to independent confirmation test at employee’s expense.
Massachusetts – It can be said that Massachusetts legislation does not address drug testing in private employment. However, they do suggest random drug testing those who work in safety‐sensitive or business interest areas and those involved in on-the-job accidents.
On a side note, the Massachusetts Supreme Court did issue a ruling on random drug testing in private employment. In the case of Webster v. Motorola, the Court found that the validity of an employer’s policy of random drug testing had to be weighed on a case-by-case basis, taking into account the employee’s job responsibilities and the employer’s interests.
Michigan – There’s no law addressing drug testing in private employment. This basically means that drug testing is not prohibited nor is it restricted unless it violates other legal provisions. An employer may require an employee to submit to a drug test or an alcohol test as a condition of employment.
Minnesota – An employer may request or require a job applicant to undergo drug and alcohol testing provided a job offer has been made to the applicant and the same test is requested or required of all job applicants conditionally offered employment for that position. There is no job termination on first‐time positives results, pre‐employment positive screens must be confirmed before an offer can be withdrawn. Those who tested positive on their drug tests have up to 8 days to take a confirmatory retest. The law also states that a drug or alcohol test is required if there is an incident that has an injury or while the individual was helping to operate work‐related machinery, equipment, or vehicles. Random drug testing is mandatory for those working in safety‐sensitive positions.
Mississippi – Employers are not required to drug test applicants as part of the employment application process. Although applicants must be notified in writing if testing will be required. An employer may refuse to hire an applicant who tests positive or won’t take a drug test. If a policy has not already been implemented, the employer must give their employees a notice of 30 days prior to starting a testing program. Drug testing may be required:
- based on reasonable suspicion of drug use
- as part of a routinely scheduled fitness-for-duty medical examination
- as a follow up to a rehabilitation program, or
- if an employee has tested positive within the past 12 months.
Drug testing may also be required on a neutral selection basis. An employer may not discharge or take any adverse action against an employee on the basis of an initial positive test result that has not been verified by a confirmation test. The employer must inform the employee, in writing, within five days after receiving a positive confirmed test result. The employee has the right to request and receive a copy of the test result report. After receiving notice, the employee has ten working days to explain the positive test result.
Missouri – This state has no law(s) addressing drug testing in private employment. Just because it’s not prohibited or restricted, it doesn’t mean it violates other legal provisions. Because Missouri law doesn’t put any limits on workplace drug testing, employees who believe their test was illegal will have to rely on other legal theories. For example, an employer may run into some legal issue simply on who is tested and how the test is conducted.
Montana – Montana statute does not mandate drug and alcohol testing. Montana law does require all employers using drug and alcohol testing to adopt procedures developed by the DOT (49 Code of Federal Regulations, part 40). Montana law also restricts testing to ensure only employees involved in certain hazardous, security, safety, or fiduciary positions are subject to testing. For all post‐accident testing, incidents must involve a death, personal injury, or property damage in excess of $1500.
Nebraska – There are no restrictions on the circumstances in which an employer may require a drug test. However, it law states that an employee has the option of requesting a blood test to confirm a positive alcohol screen. An employer may fire or take other adverse action against an employee if:
- the employee tampers with a drug test sample
- the employee refuses to take a drug test, or
- the employee tests positive for drugs, and that result is confirmed in a certified clinic, hospital, or laboratory.
Nevada – This state has no law addressing whether and under what circumstances employees in private industry can be required to take a drug test. This means that drug testing is not prohibited or restricted unless it violates other legal provisions. However, an employer that requires drug testing must pay the cost of the tests.
New Hampshire – New Hampshire is not one of many states that have passed laws regulating or restricting an employer’s right to require drug testing. If any employer wishes to require drug testing, they must pay the cost of the tests.
New Jersey – All testing, except pre‐employment, should be based on a business necessity such as concern for the safety of other employees. Random drug testing should be limited to workers in safety‐sensitive positions.
New Mexico – No law addressing drug testing in private employment. New Mexico employers are therefore free to implement all types of drug testing programs at their own discretion.
New York – Random testing is limited to workers in safety‐sensitive positions. New York does not have a specific statute regulating drug testing of applicants or testing of current employees. However, some courts in the state of New York have ruled that rejecting an applicant due solely to positive test results may be unlawful and discriminatory and employers should be prepared to rebut this alleged discrimination by demonstrating that the applicant’s disability (i.e., substance abuse) prevents him/her from performing the duties of the sought after position in a reasonable manner. Employers should:
- have a written policy in place which has been distributed to all employees and posted and have employees sign an acknowledgment form;
- provide employees with at least 60 days notice before implementing a testing policy and before any testing is conducted;
- use only certified labs and require dual confirmation;
- promptly provide employees with test results and keep drug and alcohol test results confidential and in a separate file;
- provide a mechanism for employees to rebut positive results and to request a retest;
- document all instances of “reasonable suspicion;” and
- provide the employee with resource/referral information for employee assistance programs.
North Carolina – State law allows employers to test job applicants and employees for drug or alcohol impairment and regulates the procedures in implementing such testing. The law does regulate those employers who voluntarily choose to implement a drug testing program. It seeks to protect individuals from unreliable and inadequate examinations and screening for controlled substances. The purpose of the law is to establish procedural and other requirements for the administration of controlled substance examinations unless the applicant signs a written waiver; a positive test must be confirmed at an approved laboratory. Applicants do have the right to retest a confirmed positive sample at their own expense, with the choice of using the same lab that confirmed the sample or at another approved lab.
North Dakota – If an employer requires an employee or applicant to take a drug or alcohol test as a condition of retaining or obtaining employment, the employer must pay for the test and for the furnishing of any medical records. Otherwise, employers are free to implement any kind of drug testing programs at their own discretion. North Dakota has no comprehensive law addressing drug testing in private employment. In workers’ compensation cases, an employer may require an employee to take a drug test following an accident or injury, if the employer has a mandatory policy of testing under these circumstances or the employer or a physician has reasonable grounds to suspect that the incident was caused by impairment due to alcohol or drugs. An employee who tests positive or refuses to take a test in these circumstances forfeits the right to benefits.
Ohio – Employers are allowed to drug test applicants and new hires. Those who establish such a program can qualify for a discount on their workers’ compensation insurance premiums, but an employer who wants the workers’ compensation discount must drug test employees and applicants. Employers may qualify for a deeper discount if they also perform random testing and commit to helping employees with rehabilitation. Ohio employers are authorized to drug test employees in a variety of circumstances, including:
- following a workplace accident
- based on reasonable suspicion, and
- after an employee returns to work after a positive test.
Employers who drug test must have Employee Assistance Program (EAP) resources, employee education, and supervisor training.
Oklahoma – Employers may conduct drug and alcohol testing in accordance with the Standards for Workplace Drug and Alcohol Testing Act. Any employer that requests or requires an applicant or employee to undergo drug or alcohol testing shall first adopt a written policy setting forth the specifics of its drug or alcohol testing program. Any drug or alcohol testing by an employer shall be deemed work time for purposes of compensation and benefits for current employees. An employer shall pay all costs of testing for drugs or alcohol required by the employer.
Oklahoma employers may require employees to take drug tests in the following circumstances:
- following a workplace accident causing injury or property damage
- at random
- as part of a routine fitness-for-duty exam, and
- as a follow-up to a rehabilitation program.
If an employee or applicant requests a confirmation test of a sample within twenty-four hours of receiving notice of a positive test in order to challenge the results of a positive test, the employee or applicant shall pay all costs of the confirmation test, unless the confirmation test reverses the findings of the challenged positive test. In such case, the employer shall reimburse the individual for the costs of the confirmation test.
Oregon – There is no law addressing drug testing in private employment, although there are laws to regulate an employer’s right to test for alcohol. An employer may test an applicant or employee for alcohol only if the person consents to the test or there is a reasonable suspicion that the person is under the influence of alcohol. However, under state law, employers are prohibited from subjecting employees or prospective employees to a Breathalyzer test as a condition of employment or continued employment unless with the employee’s consent. The employer cannot require the employee to pay for the cost of administering the test. **Legalized Recreational Marijuana**
Should an employer want to set up a drug testing policy within the workplace, the Oregon Bureau of Labor and Industries suggest doing the following:
- implement a clear written policy on drug testing and to fully explain the policy to all your employees,
- Advise employees how they can be selected for testing,
- enforce your drug testing policy in a fair and consistent manner,
- provide your current employees with at least 30 days advance notice before starting a new drug-testing program
Pennsylvania – There is no rule dictating when drug testing in the workplace is allowed or prohibited in all circumstances. However, Pennsylvania’s unemployment compensation law and Pennsylvania case law establish some parameters for workplace drug testing by upholding an employer’s right to discharge an employee following a positive drug test. In other words, an employee is ineligible for unemployment compensation if he or she was discharged or suspended because of:
- A failure to submit to a legitimate drug test; or
- A failure to pass a legitimate drug test.
For Pennsylvania’s unemployment compensation purposes, all employer drug tests must be conducted under the employer’s established substance abuse policy.
Rhode Island – Employers may require applicants to take a drug test after making a conditional offer of employment. Employees must be allowed to provide test samples in private, outside the presence of any person. A positive result must be confirmed by a retest in a federally certified laboratory. Drug testing is not allowed in any situation other than:
- to private sector applicants after a conditional job offer has been made
- to public sector applicants only in public safety positions or positions where federal law requires such testing
- to employees, if there is a reason to believe that drug use is impairing job performance
- in conjunction with a bona fide rehabilitation program
A positive test result must be confirmed by a retest in a federally certified laboratory, and the employee has the right to have the sample retested separately at the employer’s expense. An employer may not fire the employee on the basis of a positive drug test result, but must instead refer the employee to a licensed substance abuse professional. After the referral, the employer may require additional testing and may terminate the employee if those test results show that the employee is continuing to use drugs.
South Carolina – Employers don’t have to implement applicant testing to qualify as a drug-free workplace. Like a number of other states, employers who establish a drug testing program can qualify for a discount on their workers’ compensation insurance premiums. However, employers must follow the state’s rules to get their discount, including administering a random drug testing to all of their employees. The employer must conduct a follow-up test within 30 minutes of the initial test. The employee must be notified within 24 hours of a positive test result. Although, the South Carolina Drug-Free Workplace Act does require all employers that receive state contracts or grants in the amount of $50,000 or more to certify that they will provide a drug-free workplace.
South Dakota – No comprehensive laws that regulate or prohibit drug testing in the private sector. South Dakota employers are therefore free to implement drug testing programs at their own discretion, except when it comes to safety-sensitive positions. The statute defines “safety-sensitive positions” as any law enforcement officer authorized to carry firearms and any custody staff employed by any agency responsible for the rehabilitation or treatment of any adjudicated adult or juvenile. An employee currently working in a safety-sensitive position may be required to submit to a drug test if there is a reasonable basis for thinking that the employee is using drugs illegally.
Tennessee – With exceptions in specific industries, the state has no law that regulates or requires drug testing in the private sector. Employers who establish such a program can qualify for a discount on their workers’ compensation insurance premiums. However, employers must follow the state’s rules to get their discount by drug testing their employees and applicants, in some circumstances. While more limited drug testing is allowed if it is conducted on the basis of reasonable classifications of job positions. The employer must also include a notice in its job ads and postings that it requires drug testing.
Texas – There are almost no limitations on the right of private employers to adopt drug and alcohol testing policies for their employees, but it does allow employers to deny workers’ compensation benefits if the employer can prove that the injured worker was under the influence of drugs and/or alcohol at the time of the accident. A positive drug test result can serve as proof in an employer’s motion to deny benefits.
Utah – Employers may require applicants to take a drug test as a condition of employment, as long as employers and management also submit to periodic testing. Testing may be conducted only according to the employer’s written policy, which must be available for review by prospective employees. Reasons as to why some employers may want to test for include:
- investigate any possible individual employee impairment
- investigating an accident or theft
- maintaining employee or public safety
- ensuring productivity, quality of products or services, or security, and
- being part of a rehabilitation, treatment, or counseling program in which the employee is participating as a condition of continuing employment after a positive drug test.
Testing must occur during or immediately after the employee’s regular work schedule. An employer may take action against an employee if the employee refuses to be tested or gets a confirmed positive result for drugs, an adulterated sample, or a substituted sample.
Vermont – Random testing is prohibited. However, an employer may require an applicant to take a drug test only if the applicant has received a job offer conditioned on a negative test result. The employer must give applicants a written notice that includes:
- an explanation of the testing procedure
- a list of drugs to be tested for, and
- a statement that therapeutic levels of prescribed drugs will not be reported.
Employers may also test employees for drugs only if ALL of the following are true:
- The employer has reasonable cause to believe that an employee is using drugs or is under the influence.
- The employer has an Employee Assistance Program (EAP) that provides for rehabilitation.
- Employees who test positive and agrees to enter the Employee Assistance Program (EAP) may not be terminated.
In addition, the employee may be suspended for up to three months to complete the EAP. If the employee subsequently tests positive, the employee may be terminated.
Virginia – Employers are free to require or ask employees and applicants to take a drug test, as long as they don’t run afoul of other legal protections. Yet, the law does require workers’ compensation insurance providers to give up to a 5% discount to employers who establish a drug-free workplace program, allowing insurers to determine the criteria for such a program. State law doesn’t require insurers to mandate drug testing.
Washington – It is legal for a private employer to require a drug test of its employees unless the employer uses the test to discriminate against certain people. Washington regulates drug testing of state employees by state agencies. **Legalized Recreational Marijuana**
Washington D.C. – Although many states have passed laws regulating and even restricting the employer’s right to require drug testing, the District of Columbia has not. Washington D.C. law does not yet address drug testing in private employment other than for certain entities that contract with the district. This means that drug testing is not prohibited or restricted unless it comes in violation with other legal provisions. **Legalized Recreational Marijuana**
West Virginia – Workers’ Compensation state law may deny workers’ compensation benefits to an employee or his dependents if the employee’s injury or death was due to intoxication. The West Virginia Court of Appeals has ruled that random drug testing of private employees violates the right to privacy and is contrary to the state’s public policy. Drug testing is accepted in two situations, however, when:
- An employer has a reasonable, good-faith, and objective suspicion that an employee is using drugs.
- An employee’s job duties involve public safety or the safety of co-workers
The West Virginia Human Rights Act prohibits employment practices that discriminate on the basis of certain classifications, including disability. The Act covers all public employers and private employers with 12 or more employees. However, the state Supreme Court ruled that the Human Rights Act can apply to all employers, even those with fewer than 12 employees because employment discrimination by any size employer violates the established “public policy” of West Virginia.
Wisconsin – Statute requires state contractors on certain public works projects to drug test, but no law addressing drug testing in private employment. Wisconsin employers are therefore free to screen employees or applicants for drugs, without violating any state laws. In addition, Workers’ Compensation may reduce compensation benefits by 15% if an employee’s injury results from intoxication or the use of a controlled substance. The total reduction may not exceed $15,000.
Wyoming – Employers must give 60 days’ notice prior to testing. Employees must be tested upon reasonable suspicion of drug use, following a workplace accident, and at random. Employers must follow test protocols prescribed by state regulations, including a blood test following an accident. An employer who tests must have a written policy that includes a statement of the consequences should a positive result be the outcome and refusal of testing. An employee who tests positive has five days to contest or explain the result.
The state gives employers, who establish a drug and alcohol testing program, a discount on their workers’ compensation premiums. In return, employers must test job applicants for drugs and they may (but are not required to) test applicants for alcohol. Another stipulation is that any and all job announcements must state that testing is required.
U.S. Territories – Although many states have passed laws regulating or restricting an employer’s right to require drug testing, the following territories and municipalities have not yet:
Northern Mariana Islands
U.S. Virgin Islands
The legislation does not address drug testing in the private sector, allowing employers to choose if they want to make it a requirement that employees and applicants take a drug test, as long as they don’t run afoul of other legal protections.
Even if a state or U.S. Territory does not have a drug testing law/regulation, it would be smart if private sector employers are aware of any related court rulings concerning laboratory regulations, privacy laws, workers’ compensation, and employment compensation laws. Also, keep in mind these regulations could change anytime, so what may be illegal this week, may not be next month. As the whole nation watches what is happening in states like Colorado and Washington after they legalized Marijuana, we all keep our finger on that pulse to discover how far it will go and if any changes will be made. Rapid Detect is always here for all your drug testing needs. Our friendly knowledgeable sales consultants can answer your questions weekdays from 8 am to 4 pm CDT by calling (888) 404-0020 or you can ask by email.