How do States regulate drug free workplace and drug testing programs?
Understanding the variety of laws that could impact a workplace drug testing program and how those laws work together can a very challenging part of creating a drug-free workplace program. With mandatory and voluntary laws, case law decisions, and federal regulations, it’s no wonder that employers are often left wondering what fits where.
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An Overview of Drug Testing State Laws – Mandatory, Voluntary, and Case Law and Their Differences
On the state level, laws are generally considered mandatory or voluntary. Mandatory laws are exactly what they sound like – compliance is required, not optional. Many states have mandatory laws that apply to all private-sector employers, while other states have mandatory laws that only apply to a specific industry. If you are in a state that has mandatory drug testing laws, it is important that research those laws thoroughly to ensure complete compliance.
States may have multiple mandatory laws, further complicating testing procedures. If a state has multiple mandatory laws, the employer must comply with the provisions in each law.
If a state doesn’t have mandatory laws, it is often likely to have voluntary laws. Voluntary laws are optional and usually offer some type of incentive to encourage employers to conduct drug testing. Incentives offered, such as a workers’ compensation insurance premium discount, come with conditions. In order to qualify for the promised benefits, employers must drug testing according to the provisions outlined in the voluntary law; in other words, for participating employers, those provisions become mandatory.
Similar to mandatory laws, a state can have multiple voluntary laws, and in order to receive the promised benefit(s) employers must comply with all aspects of each voluntary law. Other
Unless otherwise mentioned, employers that choose not to participate in the voluntary law programs are not required to comply with the provisions of those laws. For instance, if a voluntary law requires participating employers to only conduct lab-based urine drug testing, non-participating employers may use instant-result drug testing devices and/or test hair or oral fluid.
Regardless of what type of law a state has, many states have additional case law that can affect a company’s drug testing policy. While there is technically no legal penalty for non-compliance with case law, employers that choose not to comply with case law in their state(s) of operation expose themselves to legal liability.
Case law is only applicable in the state in which the ruling was made and depending on the court may be overturned by a later ruling by a higher court. Case law often offers clarification on mandatory or voluntary state testing laws. Employers should defer to case law when applicable.
In the process of trying to understand all applicable state laws and case law decisions, it is important to realize that federal regulations trump state drug testing laws. An employer covered by the drug and alcohol testing requirements of the U.S. Department of Transportation (DOT), for example, must comply with all the provisions of the DOT regulations regardless of any restrictions or requirements that may apply in a state.
Additionally, if you are in a state that has an industry specific law that applies to your workplace, you must comply with that law, regardless of other state laws.
Ensure that your drug testing policy complies with all applicable state laws.
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