How Can Multistate Employers Develop Solid Drug-Testing Policies?

Multistate employers with drug-testing policies must ensure that they comply with the various state laws that apply to such practices. This can be complicated for many reasons. For instance, states may have different definitions of terms like "reasonable suspicion," as well as different steps that employers must follow after a worker tests positive for illicit drug use.

Employers should first think about what types of testing they want to do and why, said Kathryn Russo, an attorney with Jackson Lewis in Long Island, N.Y. While pre-employment testing is generally allowed in every state, other types—like random drug testing—are more regulated.

[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]

Michael Clarkson, an attorney with Ogletree Deakins in Boston, said multistate employers should consult an attorney before rolling out a policy. "If you're trying to do it yourself, you need to be an expert in every applicable location," he said. For example, he noted, Minnesota employers need to know that they can't fire an employee for the first positive drug-screen result. Rather, employees must be given the opportunity to rehabilitate. And California employers need to know that random drug tests are heavily restricted in the state.

Many states also have a number of technical requirements—like written notice and confirmatory retest procedures—that can be burdensome. That's another reason employers need to review their policies with counsel, Russo noted.

Federal Law

The federal government doesn't place many limits on workplace drug testing—except for in a few safety-sensitive industries like transportation, aviation and national security. Therefore, most compliance issues will revolve around applicable state laws—but there are a few federal laws that employers should keep in mind.

Although most private employers aren't required to have a drug-free workplace policy, federal government agencies, certain federal contractors and grant recipients must have policies and programs in place that comply with the federal Drug Free Workplace Act. Drug testing is permitted but not required under the act.

Employers need to ensure that their drug-testing procedures don't violate the Americans with Disabilities Act (ADA). The ADA prohibits employers with 15 or more employees from discriminating against qualified job applicants and employees because of a disability.

The act allows employers to prohibit the use of drugs and alcohol in the workplace and to take adverse action against current illegal drug users. But the ADA doesn't allow employers to discriminate against recovering alcoholics and rehabilitated drug users who have sought addiction treatment.

Employers also must be careful about how they handle legal prescription drugs that show up in a screening, Clarkson said.

A drug test can't tell the difference between a prescription opiate and heroin, so the employer shouldn't jump to conclusions based on a positive result. Clarkson said if an employee is using a prescription legally, he or she probably has a protected disability, and the employer should engage in an interactive process with the worker to see if a reasonable accommodation can be provided.

Employers should also be aware of the Occupational Safety and Health Administration's anti-retaliation rules that place limitations on post-accident drug-testing practices that may deter employees from reporting workplace injuries.

State Laws

Employers need to carefully review all applicable state workplace drug-testing laws because they vary widely. Louisiana law, for example, places very few restrictions on employers—but it does require that employers that take adverse action based on a positive drug test use certified laboratories and specific testing procedures.

On the other side of the spectrum, Maine has one of the most burdensome laws for employers, Russo said. Maine law not only limits when testing can be done but also has strict rules about policies and employee notifications.

Among other things, drug-testing policies in Maine must be in writing and must be approved by the state labor department. 

Employers should also note the limitations on the type of testing—such as pre-employment, reasonable suspicion, post-accident and random testing, Clarkson said.

[SHRM members-only multistate coverage: Multistate Employer Resources] 

Even though pre-employment screening is generally allowed, state laws may dictate when the testing can be done and how job applicants must be notified.

Furthermore, random drug tests are restricted in some states, such as Massachusetts, and prohibited in others, such as Vermont.

Some state laws also limit the testing methods employers can use. While urinalysis tests are typically permissible, hair follicle or saliva tests may be prohibited.

Employers also should note any city laws that govern drug testing, Russo said. Boulder, Colo., and San Francisco, for example, each have their own rules.

Medical Marijuana

Twenty-nine states and Washington, D.C., have legalized medical marijuana use, and some of those states have also legalized recreational use. This makes things complicated for employers, especially since all use is still illegal under federal law.

A number of state courts that have heard cases on employee medical marijuana use have sided with employers that took adverse action based on positive drug screens. But Russo said the tide is starting to turn.

Clarkson and Russo both pointed to a recent Rhode Island case in which a court sided with a job applicant who was rejected after she disclosed to the prospective employer that she would not pass a drug screen due to her medical marijuana use.

Some state laws provide job protections for certified medical marijuana users, and some don't. But Russo said employers can no longer assume that they will win if an applicant or employee sues over a marijuana-related employment decision.

Clarkson said employers should engage in an interactive process with job applicants and employees who use medical marijuana: Make sure they are registered users, see if they can switch to a different drug, and make sure the job description accurately identifies the essential functions of the job.

Training

Once a policy is developed, Russo recommends communicating it to all employees and providing training for supervisors.

"A policy isn't effective if no one reads it," she said. "It's important to sit down with managers and supervisors to make sure they understand it and know how to enforce it."

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