Drug Testing When You Are a Multi-state Employer

Multi-state employers with drug-testing policies must ensure they are complying with the various state laws that apply. However, every state is different. For example, some states have different definitions of terms like “reasonable suspicion,” as well as different steps employers must follow with after a worker tests positive for illicit drug use.

Federal Law

Except for a few safety-sensitive industries like transportation, aviation, and national security, the federal government doesn’t place many limits on workplace drug testing. Most private employers aren’t required to have a drug-free workplace policy. Federal government agencies, some federal contractors, and grant recipients must have policies and programs in place that comply with the Drug-Free Workplace Act. Drug testing is permitted but not required under this act.

State Laws

Employers should carefully review all applicable state workplace drug-testing laws because they vary widely. Most pre-employment screening is allowed but state laws dictate how the testing is done. Some states restrict random drug testing and others prohibit it. Some require urine tests but hair follicle and saliva tests may be prohibited. Some cities, like San Francisco and Boulder, even have their own laws.

Medical Marijuana States

Twenty-nine states and Washington, D.C. have legalized medical marijuana use and some recreational use. This can make things even more complicated for employers. Although marijuana is illegal under federal law, because it varies between states the employees rely on state courts to side with them. Some states even have job protection for certified medical users.

Protecting Employees with Disabilities

A drug test doesn’t know the difference between a prescription opiate and heroin. An employer shouldn’t jump to conclusions based on a positive result.  The employer should engage in a dialogue with the worker to see if a reasonable accommodation can be provided. This is when the employee is using a prescription legally and he or she probably has a protected disability under the ADA.

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