Staying in Compliance: What Employers Need to Know About Drug Testing Laws

September 18, 2019

Drug Testing Articles


If you own a business and you want to give your employees drug tests, you need to do it the right way. Here’s what you’ll want to know about drug testing laws.

Research shows that 56% of U.S. employers require employees to take a pre-employment drug test before joining their team.

Are you considering implementing one at your workplace?

If so, it’s a smart move. The same research reveals that 7 out of 10 Americans have used drugs at work. However, before you begin a program, you need to understand what drug testing laws allow, and what they do not.

Today, we’re taking a look at the legalities surrounding drug testing, and how you can stay in compliance.

Ready to learn more? Let’s take a look!

Federal Agencies Required to Drug Test

First, it’s important to understand that if you’re a private business, you are not required by law to implement a drug-free workplace policy.

On the other hand, these employers do have a legal obligation to drug test:

  • Federal contractors
  • Federal grantees

In addition, employers who oversee safety-sensitive positions must also have drug testing plans in place. These are intended to protect those in public safety and national security roles.

As such, both employers and employees whose organizations fall under the following agencies are subject to drug testing requirements:

  • Department of Transportation (DOT)
  • Department of Defense (DOD)
  • Nuclear Regulatory Commission (NRC)

State Drug Testing Laws

Most states and U.S. territories have their own specific laws that dictate when and how employers should conduct workplace drug testing.

There is no overarching standard that applies to every state, though some have laws that mimic the federal standards described above. For instance, many require state and local contractors to develop drug-free workplace policies akin to federal policies.

Each state can also set its own parameters around which types of businesses should drug test.

Some, such as Louisiana, allow testing in almost every kind of business in both the public and private sector. Others, such as Maine, have stricter guidelines around who to test, how to test, and what kinds of disciplinary actions employers can take after a positive test. Some states will also allow random drug testing at work, while others will not.

As these laws vary by state, it’s smart for employers to seek legal counsel before developing their own drug testing policies. A local employment attorney will be well-versed in local requirements. You can also reference this state-by-state guide from the American Civil Liberties Union (ACLU) for more information.

Protecting Basic Civil Rights

In addition to federal mandates and state laws, there is also federal civil rights legislation in place that protects the basic rights of American workers. As many of these factor into drug testing policies, let’s review some of the most important ones.

Americans With Disabilities Act (1990)

If you’re a U.S. employer with more than 15 employees, the ADA prohibits you from discriminating against qualified job applicants or employees because of a physical disability.

While the ADA doesn’t prohibit you from implementing a drug-free policy at work, it does make it illegal for you to discriminate against recovering alcoholics and drug users who have sought appropriate treatment.

Under the ADA, you cannot fire, refuse to hire, or refuse to promote someone who:

  • Has a history of substance abuse
  • Is enrolled in a drug or alcohol rehabilitation program

In addition, you should be careful not to single out an employee to drug test simply because he or she appears to be under the influence of drugs or alcohol. This is because many of the symptoms of being high or intoxicated mimic those of a physical disability, including:

  • Slurred speech
  • Confusion and disorientation
  • Lack of coordination

Civil Rights Act (1964)

Under the Civil Rights Act, U.S. employers with more than 15 employees are also prohibited from discriminating against future or current employees on a basis of race, religion, sex, or nationality.

Title VII of this Act protects workers against unfair testing or disciplinary action due to their racial, ethnic, or gender group. As a precaution and added protection, you should allow a diverse group of employees to participate in creating your drug-free policy to make sure it’s culturally sensitive and free of bias.

Family and Medical Leave Act (1993)

The FMLA applies to public agencies and private employers who employ more than 50 workers.

Under this Act, employees can take up to 12 weeks of unpaid, job-protected leave to tend to a personal health condition or to help a family member through one, given that they have worked at the company for one year and at least 1,250 hours in the past 12 months.

If they qualify for FMLA, employees can use it to:

  • Seek treatment for addiction
  • Treat a physical ailment related to addiction (e.g. kidney failure)
  • Care for a family member with these conditions

If a drug test comes back positive and an employee seeks subsequent treatment, an employer cannot retaliate if that employee uses FMLA to do so.

National Labor Relations Act (1935)

This Act provides legal guidelines around management and labor negotiations. In terms of drug testing programs, employers must negotiate with the union if any program affects unionized workers. This is done through a formal collective bargaining process.

Even if a federal mandate requires the test, the employer must work with the union to determine when to conduct the test and what penalties to apply if someone tests positive.

Legal, Effective Drug Tests That Deliver

Modern employers understand the importance of implementing a strict drug-free workplace policy. Especially with the rise of drug use across the country, these programs are more important than ever before.

However, in your enthusiasm to begin one at your office, it’s important to be in alignment with federal and state-based drug testing laws. By staying within these parameters, you can rest assured that your policies are compliant.

Looking for proven, top-tier drug tests to administer to your teams? We have a large inventory covering many different types of tests, from urine dip cards and mouth swabs to hair testing kits.

Contact us today and take a major step toward improving the health of your organization.

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