Drug Testing Practices for Multi-State Employers

 

Multi-state companies with pre-employment and current employment drug-testing policies must make sure that they are complying with the various state laws that apply. However, every state is different. Some states use different definitions for terms like “reasonable suspicion,” as well as require different steps employers must follow after a worker tests positive for illegal drugs.

Federal Law

With the exception of a few safety-sensitive industries like transportation, flight, and national security, the federal government doesn’t place a large number of limits on workplace drug testing. Many private employers aren’t required to have a drug-free workplace policy. Federal government agencies including some federal contractors and grant recipients must have policies and programs that comply with the Drug-Free Workplace Act. This act permits drug testing but does not require it.

State Laws

Employers need to carefully review all applicable state workplace drug-testing laws because they can change wildly from state to state. Most pre-employment screening is allowed but state laws are specific on how the testing must be done. Some states simply restrict random drug testing while others full-on prohibit it. Some states require urine tests but hair follicle and saliva tests are prohibited. Various 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 and included some recreational use. These laws can make things even more complicated for multi-state employers. Marijuana use is illegal under federal law because it changes between states and the employees have to rely on state courts to side with them. Some states even have job protection for certified medical users.

Protecting Employees with Disabilities

A random drug test doesn’t know the difference between a prescribed opiate and heroin. Employers shouldn’t jump to conclusions based on a positive result.  The employer should talk with their worker to see if a reasonable accommodation can be provided. This conversation may uncover that the employee is using a prescription legally and that he or she has a protected disability under the ADA.

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