Many employers use drug testing to help maintain a safe, healthy, and productive work environment. When conducting drug tests, employers must comply with ever evolving federal, state, and local laws. Below, we present several common scenarios to test your knowledge on some of the laws impacting drug testing. Choose the answer you think is right and then click to see the correct answer and explanation.
Q: An employer wants to drug test their job applicants. Which of the following statements is true about pre-employment drug testing?
- In most states, employers can only conduct drug testing on applicants for safety-sensitive positions.
- Most states permit pre-employment drug testing, but some have conditions employers must meet before conducting a drug test.
- To conduct pre-employment drug testing, the employer must have a reasonable belief that the applicant uses illegal drugs.
- Pre-employment drug testing is prohibited in most states.
B. Most states permit pre-employment drug testing, but some states have conditions employers must meet before conducting a drug test. For example, some states require notice, and have specific rules on administering a drug testing program. Some have restrictions on when in the hiring process employers can conduct a drug test, such as after a conditional offer of employment. Some states also require employers to have a written policy outlining specific elements of pre-employment drug testing. Both federal and state laws have drug testing requirements for safety-sensitive positions so review your applicable law before implementing a drug testing program.
Q: Which of the following statements is true about drug testing current employees?
- Several states restrict testing current employees.
- Most states prohibit drug testing current employees, unless it is random testing.
- The restrictions are about the same for testing applicants and employees.
A. Several states restrict testing current employees. Depending on the type of drug test, a state may completely prohibit, or limit the testing in some way. For example, several states, including California, Connecticut, Maine, and Massachusetts, among others, restrict or limit random drug testing (typically unscheduled and unannounced on randomly selected employees). With reasonable-suspicion or "for-cause" testing, many states have detailed requirements and highly specific definitions on what "cause" is sufficient to trigger a drug test. Reasonable suspicion testing is where the employer has reason to believe an employee may be under the influence of illegal drugs that may be impairing their ability to perform their job. With post-accident testing (where an employee is involved in a workplace accident and the employer suspects drug use), several states have conditions on when this type of testing is permitted. Check your state and local laws for more information.
Q: True or False: The Occupational Safety and Health Administration (OSHA) recommends that employers perform drug tests on every employee involved in a workplace accident.
B. False. OSHA maintains that employers should limit post-accident drug testing to situations in which use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. Employers don't necessarily need to specifically suspect drug use before testing, but there should be a reasonable possibility that drug use was a contributing factor to the incident in order for an employer to require drug testing.
Q: The Americans with Disabilities Act (ADA) prohibits employers from discriminating against applicants and employees on the basis of a disability. Which of the following would the ADA generally protect?
- An alcoholic.
- An employee currently engaging in the illegal use of drugs.
- A recovering drug addict who is no longer engaging in the illegal use of drugs.
- A and C.
D. A and C. The ADA may protect a "qualified" alcoholic who can meet the definition of "disability" or a recovering drug addict who is no longer engaging in the illegal use of drugs. The ADA does not protect an individual who currently engages in the illegal use of drugs.
Q: Twenty-nine states and DC allow individuals to use marijuana for medicinal purposes. Nine states and DC permit recreational marijuana. Do any of these states require employers to allow employees to use marijuana during work hours or in the workplace?
- All permit use in the workplace.
- Most permit use in the workplace.
- None permit use in the workplace.
C. None permit use in the workplace. No state requires employers to allow employees to use, possess, or be impaired by marijuana during work hours or in the workplace. Employers can still prohibit marijuana use in the workplace, just as employers may prohibit alcohol use in the workplace. Draft drug-free workplace policies carefully and make clear that employees are prohibited from using, possessing, or being impaired by drugs that are illegal under federal or state law (including marijuana) in the workplace or during work hours.
Q: True or False: All states allow employers to immediately terminate any employee who fails a test for marijuana.
B. False. Some states require employers to follow certain procedures before terminating an employee for failing a drug test. In Vermont, for example, employers can't terminate an employee for a positive drug test if the employee agrees to participate in and then successfully completes an employee assistance program (such a program is required for Vermont employers to conduct drug testing). Additionally, some medical marijuana laws prohibit employers from making employment decisions based solely on a person's status as a medical marijuana user or cardholder.
A few states prohibit discrimination against individuals because they test positive for medical marijuana, unless the individual used, possessed, or was impaired by marijuana in the workplace or during work hours. Typically, these employment protections have exceptions for safety-sensitive positions and/or when they would result in the loss of a business license or a government contract.
Note: Maine's recreational marijuana law prohibits employers from refusing to employ individuals solely because they use marijuana outside the workplace.
Before making any employment decisions resulting from an individual's use of marijuana, check your state law and work closely with legal counsel to determine your rights and responsibilities.
Q: How should employers retain drug testing results?
- In a confidential file separate from the employee's personnel file.
- In the employee's personnel file.
- They shouldn't—they should dispose of them immediately.
A. In a confidential file separate from the employee's personnel file. Given the sensitive nature of the information, it's a best practice to keep drug test results separate from personnel files. Keep them in a secure location with controlled access. If records are stored electronically, they should be password protected and only accessible to those with a need to know the information.
Q: Colorado prohibits employers from taking adverse action against individuals based on their lawful off-duty conduct. Does this apply to recreational marijuana, which is considered lawful under Colorado law?
- Employers are still waiting for the Colorado Supreme Court to weigh in on this question.
C. No. The Colorado Supreme Court has ruled that marijuana use isn't protected by the state's off-duty conduct law because it remains illegal under federal law. The Court clarified that conduct must be lawful under both federal and state law to be protected under the state's off-duty-conduct law. Similar laws in other states have yet to be tested in court.
Q: Which state became the first (and only so far) to rule that in some situations, allowing employees to use medical marijuana off duty may be a reasonable accommodation for a disability under state law?
- New York
D. Massachusetts. In 2017, the Massachusetts Supreme Judicial Court held that, in some cases, an exception to the employer's drug policy for the use of medical marijuana off duty may be a reasonable accommodation for a disability. The Court said that under state law, employers must engage in the interactive process with individuals who have a disability and may need an accommodation, and that off-duty medical marijuana use may be a reasonable accommodation in some situations.
Q: An employer has truck drivers who are subject to the Department of Transportation's (DOT's) drug-testing regulations but operates in a state that permits both medical and recreational marijuana. What happens if one of these employees fails a drug test because of marijuana, according to the DOT?
- The employee is allowed to keep driving.
- The employee is barred from driving or performing other safety-sensitive duties until certain steps are completed.
B. The employee is barred from driving or performing other safety-sensitive duties until certain steps are completed. The DOT's position is that it is unacceptable for any employee in a safety-sensitive position (and subject to DOT drug testing regulations) to use marijuana. If an employee in such a job fails a drug test for marijuana, the employee would be barred from performing safety-sensitive duties until the employee has seen a substance abuse professional and successfully completed the DOT's return-to-duty process, which includes a drug and/or alcohol test.
Employers should understand and ensure compliance with federal, state, and local laws governing drug testing. Continue to watch for developments, especially in the evolving area of medical and recreational marijuana laws.