Drug Testing in the Workplace

Date: June 25, 2024

As the legal landscape of marijuana use evolves, and states begin to change their stance on drug policies, businesses may wonder if or how they can legally implement drug testing policies. Such policies can help ensure a safe and productive work environment, while still complying with state and federal regulations.

State Regulations

State laws continue to vary significantly regarding drug testing with some having comprehensive laws governing when and how employers can conduct drug tests, and others having minimal or no regulations.

States like New York and California, for example, have very specific conditions under which an employer can conduct a drug test. These conditions often require reasonable suspicion, or can be implemented after accidents. States like New York may also have specific instances of when an employer can implement a drug test if the employee is required to operate a commercial vehicle, or hazardous materials and machinery.

Overall, it is imperative to check in with your state laws on drug testing your employees, before implementing any policies.

The Changing Legal Landscape

Despite its increasing legality on the state level, marijuana remains classified as a Schedule I controlled substance under federal law. The discrepancy can create confusion for employers who must navigate state protections for marijuana users while complying with federal regulations.

Substances like CBD (cannabidiol) and other cannabinoids can also contain trace amounts of THC (the psychoactive component of marijuana). With that, employers must decide whether to include such substances in their testing panels, and how to handle positive test results that emerge from legally obtained products.

Where can I test?

  1. Pre-employment Testing

Pre-employment drug testing is the most common drug testing practice and is generally permissible across most jurisdictions. If you require pre-employment drug testing, you should explicitly communicate the policy to applicants. Additionally, there are a handful of states that may have more stringent testing regulations than others.

  1. Reasonable Suspicion

Testing based on reasonable suspicion is widely accepted and occurs when there is reason to believe an employee is under the influence of drugs, whether from an incident or other evidence. If you do decide to drug test based on reasonable suspicion, you should ensure that supervisors and others are trained to provide written documentation of the incident.

  1. Post Accident Testing

Drug testing after an accident is widely permissible and sometimes even required in industries with safety risks. Employers should ensure that their policy on drug testing explicitly outlines what is considered a workplace accident.

  1. Random Testing

Random testing is allowed in many states and is generally permissible for hazardous positions. These random tests, however, must be truly random and non-discriminatory to avoid potential legal issues. Check in with your state laws to ensure you are in compliance.

Drafting a Drug Testing Policy

Having a clear-cut drug testing policy for your employees can help ensure a safe work environment, and mitigate confusion among your staff on the subject. Within your policy, it is recommended to:

  • Define the overall purpose of the policy;
  • Describe and outline testing procedures;
  • Assure confidentiality; and
  • Specify consequences.

Make sure you are up to date on all federal and state laws and regulations pertaining to drug testing before drafting a policy. Once the policy is drafted, ensure it is also communicated clearly with each and every member of your staff.

If you have any additional questions on drug testing in the workplace you can email [email protected].

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