Regulations for Workplace Drug Testing
Regulations for workplace drug testing are very important to maintain an effective and legal drug free workplace program. These regulations typically fall into several categories.
DOT Regulations – these are the drug and alcohol testing regulations for employers regulated by the United States Department of Transportation (DOT). These regulated employers must follow these regulations as they are mandatory. The DOT regulations for drug and alcohol testing also supersede any other State or Local regulations for drug testing or alcohol testing being conducted by these DOT regulated employers. For detailed information on DOT regulations and DOT drug and alcohol testing programs visit our DOT Compliance Page.
Drug Free Workplace Act of 1988 – Employers and grant recipients working with the Federal Government may be required to implement a drug free workplace program due to the contract they have with the Federal Government. The Drug-Free Workplace Act of 1988 requires some federal contractors and all federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or grant from a federal agency. How can you comply with this Act – visit our page on the Drug Free Workplace Act of 1988.
State laws on drug testing are typically broken down by States with mandatory requirements, States with no specific requirement or open states and States with voluntary requirements. Court decisions or case law can also impact what you can or cannot due in a drug testing program in a specific state. To make it even more confusing, some states have open, mandatory and voluntary scenarios. In addition many States have public works laws requiring employers working on State funded public projects to maintain a drug free workplace similar to the Drug Free Workplace Act of 1988 but on a State level.
The States with mandatory requirements have statutes that spell out what can be done and what cannot be done with workplace drug and alcohol testing programs. Examples of mandatory States include: Connecticut, Hawaii, Iowa, Louisiana, Maine, Maryland, Montana, Nebraska, North Carolina, Oklahoma, Oregon and Vermont. In many cases the State mandatory requirements would mirror Federal or SAMHSA drug testing rules and guidelines.
Open States generally have no statutory rules or guidelines for drug or alcohol testing. These states are not restricting drug testing and will have no specific requirements for drug testing. Examples of open States include: New Hampshire, Nebraska, Wisconsin, Washington, Texas, South Dakota, Pennsylvania, North Carolina, Michigan and Massachusetts.
Voluntary States are typically States that have voluntary laws that offers a workers’ compensation premium discount to companies that elect to participate and follow the State program for drug free workplace. Although participation is voluntary, once the employer elects to participate in the States drug free workplace program there are now requirements. Georgia and Ohio have the most aggressive voluntary law with workers’ compensation premium discounts up to 7% for Ohio and 7.5 % for Georgia. Other States with voluntary drug free workplace laws include: Alabama, Alaska, Arizona, Arkansas, Florida, Idaho, Kentucky, Mississippi, South Carolina, Tennessee, Utah, Virginia and Wyoming.
Regarding the Occupational Safety and Health Administration (OSHA) rule on post-accident drug & alcohol testing, there is nothing to prohibit drug testing of employees, including drug testing pursuant to the Department of Transportation rules or any other federal or state law. It only prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
Employers should continue to post-incident drug testing pursuant to a state or federal law, including DOT testing and Workers' Compensation Drug Free Workplace policies, because OSHA section 1904.35(b)(1)(iv) does not apply to drug testing under state workers' compensation law or other state or federal law.