Drug testing requirements by state

Drug testing can help minimize the risk of workplace accidents and injuries and improve employee productivity and attendance. However, before conducting drug testing of job applicants and employees, employers should be aware of various complex issues and compliance obligations to which they may be subject.

Federal law does not prohibit employers from testing employees and job applicants for current illegal drug use. However, testing and any subsequent action by an employer based on test results must be implemented in compliance with the federal Americans with Disabilities Act (ADA), collective bargaining agreements and other federal, state and local laws that protect workers from discrimination or privacy violations.

In addition, employers subject to federal testing requirements, such as those imposed by the federal Department of Transportation, and federal contractors covered under the Drug-Free Workplace Act of 1988, must ensure that they conduct drug testing accordingly. Further, some state and local laws may restrict the conditions under which drug testing is permitted (e.g., testing of a job applicant is only permitted after a conditional offer of employment has been extended).

A basic drug test typically screens for illegal drugs: amphetamines, cannabinoids (e.g., marijuana, hashish), cocaine, opiates (heroin, morphine, opium, codeine) and phencyclidine (PCP). This type of test is normally usually referred to as the 5-panel test for Schedule I controlled substances (under the federal Controlled Substances Act).

For each state and the District of Columbia, our chart indicates:

• The form of notice required to conduct drug tests (e.g., written policy);
• When preemployment drug testing is permitted;
• The types of employee drug tests that are permitted (e.g., preemployment, random, post-accident, reasonable suspicion, return-to-work, periodic, fitness-for-duty);
• Test sample collection methods (e.g., urinalysis) and processing requirements; and
• Whether testing for marijuana is permitted.

Our chart only addresses requirements pertaining to private employers. It does not address alcohol testing, local laws or industry-specific rules that may impose drug testing requirements or restrictions (e.g., federal DOT requirements) on employers.

The chart also does not address disciplinary or discriminatory protections afforded to applicants or employees who test positive for marijuana in states where medical or recreational marijuana use is legal.

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