Deciding whether to conduct drug testing for candidates and employees? It often comes down to a cost-benefit analysis. Let’s dig deeper into the costs of drug testing.
Pre-employment drug testing can help employers maintain a safer workplace. However, rapidly changing laws around drug testing can present challenges for employers to maintain compliance with pre-employment drug testing laws. Here’s what employers need to know about drug test laws and why working with a qualified background check provider can help keep your hiring practices compliant, consistent, and fair.
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What Is A Pre-Employment Drug Testing Policy?
A pre-employment drug testing policy is a written company document that outlines what job applicants can expect during the hiring process.
An organization’s drug testing policy typically includes a range of information, such as:
- The purpose of the drug screening
- The type of substances being screened
- When the employer will conduct the test(s)
- Frequency of drug testing
- Where the drug screening will take place (a third-party lab, on-site, etc.)
- How the employer will adjudicate the results
- What to expect in the event of negative or positive results
Employers that plan to conduct drug testing on candidates (and in some cases, existing employees) as part of the background check process should consider creating a written drug testing policy. Your organization’s drug testing policy should apply for candidates as well as current employees.
Keep in mind that drug testing laws are rapidly evolving and vary widely from state to state and city to city — especially around medicinal and recreational marijuana use. Before drafting a drug test policy, it’s a good idea for employers to consult legal counsel to ensure compliance with all federal, state, and local pre-employment drug testing laws.
Why Employers Drug Test Employees & Candidates
Performing pre-employment drug screenings can be an important part of the hiring process. Drug tests can help employers detect the use of commonly abused illicit and prescription drugs that may impact an employee’s ability to perform their job and maintain a safe workplace. Drug testing can also help discourage employee turnover and absenteeism.
While employers are generally not required by law to drug test candidates during the hiring process or to conduct random drug testing, certain types of businesses or those within specific industries may be mandated by drug testing laws to require pre-employment drug screenings. For example, under the federal regulations of the Drug-Free Workplace Act of 1988, some types of federal contractors and companies that receive federal funds must establish a drug-free workplace policy. In addition, the US Department of Defense (DOD) also mandates contractors with national security clearance to maintain a drug-free workplace program.
Certain roles regulated by the US Department of Transport (DOT) under the Omnibus Transportation Employee Testing Act of 1991 are required to undergo pre-employment drug testing, including truck drivers, machinery operators, and other transportation workers.
Federal Drug Testing Laws
Federal drug testing laws are designed to protect both employers and employees. These laws can also help promote safer work environments while ensuring organizations are following fair hiring practices. Here’s a closer look at the federal drug-screening laws employers should be aware of:
Employers who choose to partner with a qualified CRA for pre-employment drug testing must comply with the requirements of the federal FCRA, which are designed to help protect candidates. Before performing a pre-employment drug screening, employers must provide written notice of the intent to conduct a drug screening and receive permission in writing from the candidate before proceeding. In the event an employer chooses not to hire a candidate based on the results of the drug test, they are also required to follow the adverse action process.
This fair hiring law helps protect candidates from discrimination due to their sex, race, religion, color, or national origin. Employers are not allowed to single out particular individuals or groups of people for drug testing based on protected classes.
The ADA prohibits employers from discriminating against candidates with physical disabilities. When it comes to drug testing specifically, it makes it illegal for hiring managers to discriminate against those who have a history of substance abuse, are recovering from substance abuse, or are presently enrolled in a rehabilitation program.
Under the ADA, candidates also cannot be singled out for drug screenings because they may appear to be under the influence of alcohol or drugs. Some of the signs and symptoms of being under the influence may be related to a disability, illness, or medical condition.
Additionally, questions about any of the above—or prescriptions to treat them—should not be asked during the hiring or drug-testing process. However, candidates should be advised to bring any prescription medicines with them to their drug test so screening facilities are aware of what may appear on the results.
This Act requires federal contractors and grantees to implement a drug-free workplace policy when they meet certain criteria, including receiving any size federal grants or a federal contract of more than $100,000. The law also requires employers regulated under this Act to distribute a formal drug-free workplace policy statement, have a drug-free awareness program in place, and discipline employees convicted of criminal drug violations.
Drug Testing Laws By State
Employee drug testing laws vary widely by state and legislation is evolving rapidly, especially with the legalization of marijuana in many states for both medical and recreational use. Employers are legally required to keep their drug testing policy up-to-date to comply with federal, state, and local laws. Always consult with your own legal counsel for guidance to ensure your organization is compliant with the latest applicable laws.
Drug testing is most often required by industry and/or job category (such as school bus certification in Arizona). However, most states have regulations related to if and when an employer is permitted to drug test.
Here is a closer look at employer drug testing laws by state:
|State||Regulated Employers||Provisions For Job Applicants||Marijuana Legality|
|Alabama||All employers||Drug testing is permitted after the candidate receives a conditional offer of employment and is provided a copy of a drug testing policy.||N/A|
|Alaska||All employers||Drug testing is permitted with notice to the applicant.||Medical and recreational|
|Arizona||All employers||Drug testing is permitted by all private employers, plus school districts and organizations that provide school district transportation, as long as the candidate has been informed beforehand.. If the candidate refuses to take a drug test, this can be grounds for not hiring.|
Testing is mandatory for school bus certification.
|Medical and recreational|
|California||State government employers||State agencies are permitted to drug test candidates applying for sensitive roles when the testing is job related.Drug testing is mandatory for public transportation drivers.||Medical and recreational|
|Colorado||None||N/A||Medical and recreational|
|Connecticut||All employers||Drug testing is permitted by all private employers as long as the applicant receives written notice in the job application and certain other requirements are met.|
Testing is mandatory for school bus drivers.
|Medical and recreational|
|Florida||Private employers||Private employers with 3 or more employees may conduct drug tests after providing advance notice to the applicant.||Medical|
|Hawaii||All employers||Drug testing is permitted after the candidate receives a drug testing policy and is provided the chance to disclose any current prescription or non-prescription drugs they are taking.|
Testing is mandatory for city of Honolulu civil service applicants.
|Idaho||All employers||Drug testing is permitted pursuant to a written drug testing policy, which must be made available to job applicants.||N/A|
|Illinois||None||N/A||Medical and recreational|
|Iowa||All employers||Drug testing is permitted if the candidate is informed at the time of application that a drug test is required. Job ads and applications must show notice of drug testing. Job applicants must also receive a list of the substances to be tested.||N/A|
|Kansas||State government employers||State government agencies are permitted to drug test candidates applying for safety-sensitive jobs after an offer of employment has been made. Job listings for these roles must provide notice of a drug test.||N/A|
|Maine||All employers||Drug testing is permitted after the candidate has received a conditional offer of employment.||Medical and recreational|
|Maryland||All employers||Drug testing is allowed, but must comply with certain procedural requirements.||N/A|
|Massachusetts||None||N/A||Medical and recreational|
|Michigan||None||N/A||Medical and recreational|
|Minnesota||All employers||Drug testing is permitted with advance notice if all candidates for that position are tested and the candidate has received a conditional offer of employment.||Medical|
|Montana||All employers||Drug testing is permitted for candidates as a condition of hire.||Medical and recreational|
|Nevada||State government employers||State agencies are permitted to drug test for roles involving public safety.||Medical and recreational|
|New Jersey||All employers||Drug testing is permitted, however a candidate’s marijuana use outside of work cannot affect hiring decisions.||Medical and recreational|
|Ohio||None||N/A||Medical and recreational|
|South Dakota||State government employers||State government agencies are permitted to drug test candidates applying for safety-sensitive jobs after an offer of employment has been made. Both job listings and public announcements for these roles must provide notice of drug testing requirements.||Medical and recreational|
|Tennessee||State government employers||The state Department of Corrections is permitted to drug test without restrictions.||N/A|
|Utah||State government employers||No restrictions on applicant testing by private employers. Local governments and state collegesmay test applicants pursuant to a written policyand with advance notice to the applicant. Positiveresults or refusal to test grounds for not hiring.||Medical|
|Vermont||All employers||Drug testing is permitted only if the employer has probable cause to believe the employee is under the influence and if the employer follows additional procedures.||Medical and recreational|
|Washington||Private employers||Private employers may test job applicants as a condition of employment. Public employers may test job applicants for positions that meet certain requirements in accordance with a written drug testing policy.||Medical and recreational|
|Washington, DC||All employers||Drug testing is generally unregulated for private employers, except for marijuana testing, which may only be conducted after a conditional offer is made (unless otherwise required by law). Public sector employers may test under certain conditions in accordance with an established drug testing policy.||Medical and recreational|
|West Virginia||Drug testing must be conducted within the terms of a written policy that has been made available to prospective employees. An employer may use a confirmed positive test or a refusal to test as a basis for refusal to hire.||Medical|
*Drug testing is not restricted, but in most cases testing must be completed by certified labs.
**Drug testing is not restricted, but any preliminary screening results must be confirmed via laboratory testing.
Restrictions on marijuana testing
The following states and cities, where marijuana is now legalized, have laws on the books regarding marijuana use and testing, with more sure to follow:
|Arizona||Employers cannot discriminate against or otherwise penalize a registered medical marijuana patient for having a medical marijuana card or testing positive for marijuana, unless the person used, possessed, or was impaired by the drug while on the job. Exceptions are made if hiring or retaining the person could cause the company to lose monetary or licensing-related benefits.|
|Connecticut||Employers can test for marijuana but cannot refuse employment or otherwise discriminate against qualifying users of medical marijuana on the basis of a positive test result, unless certain conditions are met. Certain positions are exempt.|
|Mississippi||Medical cannabis has been legalized for certain individuals with qualified standards. However, employers can still test for drugs and can deny employment or take adverse action against an individual who tests positive due to medical cannabis.|
|Nevada||Although employers can conduct pre-employment drug tests, they cannot deny employment to a job candidate based on testing positive for marijuana. Certain positions are exempt.|
|New Jersey||A candidate’s marijuana use outside of work cannot affect hiring decisions. However, employers may take action based on reasonable suspicion of impairment on the job.|
|New York City||Employers in New York City cannot make pre-employment marijuana testing a requirement for employment. (Current employees may still be screened for marijuana.) Certain positions are exempt.|
|New York State||Employers in New York cannot test job candidates for marijuana unless it’s required by state or federal law or failing to test would cause the employer to lose federal funding or a federal contract.|
|Philadelphia||Employers are prohibited from requiring pre-employment marijuana testing for employment. (Current employees can still be tested for marijuana.) Certain positions are exempt.|
|South Dakota||Although medical cannabis is now legal for certain users, employers can still implement a drug-free workplace policy. This may include drug testing, if it complies with state and federal law.|
|Virginia||Employers cannot terminate, discipline, or discriminate against an employee who legally uses cannabis oil based on a valid certification from a practitioner for the treatment of a diagnosed condition or disease. Exemptions are made if failing to act would violate federal law or cause the employer to lose a federal contract or funding.|
|Washington DC||Marijuana testing may only be conducted after a conditional offer is made, unless otherwise required by law.|
Get Started With Pre-Employment Drug Testing
Employers that choose to partner with a trusted CRA, like GoodHire, can benefit from a more streamlined drug screening process, faster turnaround times, and more accurate results. GoodHire offers multiple background check and drug screening options for companies of all sizes. Our drug tests are verified by a Medical Review Officer (MRO) and designed to meet your employer company policy and drug-free workplace obligations. Get started with pre-employment drug testing today.
The resources provided here are for educational purposes only and do not constitute legal advice. We advise you to consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.