How To Use This Book

I. Topics Summarized

State Law
This book summarizes the statutes and significant state case law which address drug testing by private sector employers for all 50 states and the District of Columbia and Puerto Rico, as well as for cities which have enacted relevant statutes. The survey also
includes summaries of drug- and alcohol-testing related workers’ compensation and unemployment compensation statutes and cases.

The state-by-state summaries cover: (1) six specific types of drug testing and any related restrictions or voluntary incentives; (2) statutes that set out drug-testing procedural requirements; (3) employee administrative and judicial remedies, and employer exposure to criminal and civil liability; (4) information concerning other laws which may affect drug testing, such as disability
discrimination and privacy laws; (5) summaries of significant court decisions and case citations; and (6) summaries of related workers’ compensation and unemployment compensation statutes and cases.

The types of testing covered are preemployment, random, for-cause, periodic announced, post-accident, and rehabilitation. Detailed descriptions of how these terms have been defined for this survey are provided below.

The format for the state summaries is uniform. Where any information on a particular topic is covered by the statute being summarized, that topic will be discussed in the appropriate place following the format contained in the general outline, which comprises Chapter III. Please note that the Guide does not attempt to summarize or interpret state laws or regulations that address clinical laboratory licensing requirements, although these laws may dictate that drug and/or alcohol tests be performed in a certified laboratory or, more commonly, require laboratories that perform drug tests to meet certain quality-control standards.

Federal Law
The Guide summarizes relevant federal law, as it applies to company substance-abuse prevention efforts, including applicable portions of the Americans with Disabilities Act, the Family and Medical Leave Act, and the Department of Transportation (DoT) regulations requiring workplace drug testing for more than 8 million private-sector employees. Relevant case law interpreting these federal laws and regulations is summarized, as are federal court decisions involving workplace substance abuse and implicating other areas of federal law, such as the National Labor Relations Act, the Labor Management Relations Act, and Title VII of the Civil Rights Act of 1964. When cases include issues of both federal and state law, they will generally appear in both state and federal case summary chapters.

Selected federal regulations and guidance on drug-testing procedures issued by the Substance Abuse and Mental Health Services Administration and the Department of Transportation are reprinted as Appendices to the Guide. They include the procedural guidelines issued by the DoT, the Mandatory Guidelines for Federal Workplace Drug Testing Programs, the text of the Drug-Free Workplace Act of 1988, and an updated list of SAMHSA-certified laboratories, among others.

II. Types of Testing

The various types of drug testing are described in the state-by-state summaries, according to the following

Preemployment testing is: (1) testing that is part of the application process before an offer of employment is made; (2) testing that is part of the hiring process after an offer of employment is made, but before hiring actually occurs (a so-called “conditional offer of employment”); and, occasionally (3) testing that occurs sometime soon after the individual begins work, but passing the drug test is made a condition of employment (i.e., even though the individual is already working, his or her hiring will not become final unless the individual passes the required drug test).

Random testing, as used in this publication, is the testing of employees who are chosen on a “neutral selection” basis, without individual suspicion and without advance notice. For the purposes of the Guide, “random” testing may also include the testing of all employees in a company (or a particular division of the company) when the date and time of the testing are unannounced.

For-Cause testing, as used in this survey, includes “probable cause” and “reasonable suspicion” testing. Typically, the “cause” required is an objective, factual, individualized basis for testing, such as when an
employee’s behavior or physical appearance suggests drug use or possession of drugs, or there are other indications of a violation of the company’s substance abuse prevention policy. Many states have highly specific definitions of what constitutes “cause” sufficient to trigger a request for a test.

Periodic Announced testing occurs when employees are given advance notice of the date and time that testing will take place. It is often conducted as part of a regularly scheduled employment physical or fitness-for-duty medical examination.

Post-Accident testing is the testing of an employee who is involved in an on-the-job accident (vehicular or otherwise) which may have involved human error, and which causes (or, in some cases, could have caused) a fatality, a serious injury, or significant property damage.

Rehabilitation testing occurs during an employee’s participation in a rehabilitation program and/or upon
the employee’s return to work. Safety-Sensitive is the testing of employees whose job responsibilities are safety-sensitive. This often overlaps with the other types of testing listed above. For example, a state may permit random testing
in safety-sensitive positions, but prohibit such testing in non-safety-sensitive positions. The definition of safety-sensitive also may vary, and may include, for example, security-sensitive positions. Because the safety concerns associated with a particular job are often an issue, the summaries specifically address testing in this area.

III. What This Survey Does Not Cover

The summaries in this survey do not cover a number of legal subjects relating to drug testing. The significant topics that are outside the scope of this survey are:

    a. Testing of Public-Sector Employees. The state-by-state summaries address testing of private sector employees only. The testing of public-sector employees is frequently governed by other Constitutional, state, and federal legal principles (such as search and seizure restrictions), or under other specific statutes. However, where a public sector employee brings an action based on generally-applicable legal theories, a summary of that case may be included as appropriate.

    b. Industry-Specific Federal Regulatory Requirements. The survey does not cover the federal regulations addressing alcohol- and drug-testing requirements for employees of certain private-sector employers as mandated by the U.S. Department of Energy, U.S. Department of Defense, and the Nuclear Regulatory Commission. However, U.S. Department of Transportation regulations and case law are included.

    c. State Laboratory Regulations. The survey does not address or interpret state statutes or regulations that govern laboratory licensure and operating requirements, although those laws may, as a practical matter, impact employers’ ability to administer their drug-testing programs by requiring the use of certain procedures. Laboratory laws will be included, however, where they specifically address workplace drug testing.

This survey contains summaries of laws, regulations, and court decisions. It is not, and does not purport to be, legal advice regarding the compliance of any particular employer with any particular law. Rather, the Guide is intended for use as a resource that will point readers to legal information that may affect drug-free workplace procedure. This survey should not be used as a substitute for legal counsel. As with any employment matter, the drug-testing issue frequently involves highly specific fact situations that do not lend themselves to broad categorization for determining whether a specific action would be lawful. In addition, this area of the law is dynamic, and the most current statutory requirements and judicial precedents should be considered before any action is taken. This Guide is updated annually; even so, users should not only ensure that they have the most current version but also check for even more recent developments before acting.

IV. Editor’s Note on Abbreviations

For the sake of reading ease and because the following terms appear so frequently, their respective abbreviations rather than full names will be used throughout the text: Substance Abuse and Mental Health Services Administration (SAMHSA); National Institute on Drug Abuse (NIDA); U.S. Department of Health and Human Services (HHS); Department of Transportation (DoT); College of American Pathologists (CAP); employee assistance program (EAP); gas chromatography/mass spectrometry (GC/MS); Americans with Disabilities Act (ADA); Family and Medical Leave Act (FMLA); medical review officer (MRO); and Clinical Laboratory Improvements Act (CLIA). Additionally, other words which the Institute for a Drug-Free Workplace normally puts in quotation marks (such as “positive” and “negative” in reference to drug-test results, and “for-cause” and “safety-sensitive”) appear in this text without quotation marks, again for reading ease.

Finally, as a result of a reorganization within the U.S. Department of Health and Human Services, NIDA no longer certifies laboratories. The Substance Abuse and Mental Health Services Administration, another division of HHS, does. “NIDA-certified” laboratories are now referred to as “SAMHSA-certified” laboratories. Although many state drug-testing statutes still refer to “NIDA-certified laboratories,” the references in the text have been updated and read as follows: “NIDA [samhsa]-certified” laboratories.”