State Drug Testing Law 201: What Employers Need to Know About Workplace Drug Testing
The following article about State Drug Testing Laws is authored by Bill Current, President and Founder of Current Consulting Group, the number one recognized brand in expert drug testing consulting. This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
State Drug Testing Law 201: What Employers Need to Know About Workplace Drug Testing
By Bill Current, President and Founder of Current Consulting Group
When it comes to state drug testing laws, there seems to be no end to the questions employers need answered. That’s in part due to the fact that no two states’ drug testing laws are exactly alike. And how those laws affect businesses can vary significantly depending on a host of factors, including which state or states a company operates in, what industry it’s part of, how many employees they have, etc.
Are employees high on the job?
First off, it’s important for employers to understand the magnitude of the drug problem as it impacts the workplace. According to the 2024 Quest Diagnostics Drug Testing Index (DTI), “Drug positivity in the general U.S. workforce was 5.7% in both 2022 and 2023. In 2023, in the combined U.S. workforce, urine drug positivity for all drugs was 4.6%, the same as in 2021 and 2022. This overall positivity is the highest level in more than two decades, up more than 30% from an all-time low of 3.5% in 2010-2012, and coincides with a sharp increase of 114.3% in post-accident positivity between 2015 and 2023 in the general U.S. workforce.” [i]
In addition to the positivity rate, the 2024 Drug Testing Index revealed a shocking level of drug test cheating. “Invalid urine specimens in the general U.S. workforce increased 45.2% (0.31% in 2022 versus 0.45% in 2023). A result of substituted or invalid samples suggests a specimen has been tampered with in an attempt to conceal drug use. [ii]
What do employers need to know about state drug testing laws?
To address the issue of more workers testing positive for drugs in the most legally defensible and compliant manner, employers must understand the complexities of the hundreds of state laws that can impact workplace drug testing. Therefore, it is wise to start with a clear understanding of these three basic state law questions:
- Do the federal drug testing standards pre-empt state drug testing laws? Yes!
- Which state drug testing law applies to companies that operate in multiple states? All of them!
- What is the difference between “voluntary” and “mandatory” state drug testing laws? Check out the original article for a detailed explanation, but in short, mandatory laws apply to all employers in a state that conducts drug testing and voluntary laws only apply to employers who participate in optional state-run programs.
Let’s keep the discussion going as we discuss “State Drug Testing Laws 201.” This topic is equally important to service providers such as third-party administrators, Medical Review Officers, and collectors who are often put in the position of helping employers make important program decisions.
What other types of state laws affect workplace drug testing?
Workers’ Compensation Regulations. A direct effect of more workers testing positive for drugs is more drug-impaired workers on the job leading to more accidents. The DTI reported that: “In 2023, post-accident marijuana positivity of urine drug tests in the general U.S. workforce was 7.5%. The new peak follows a steady increase in post-accident marijuana positivity every year from 2015 to 2023. In that 9-year time frame, post-accident marijuana positivity increased 114.3%. [iii]
“Similarly, in federally mandated, safety-sensitive workforce urine drug testing… post-accident positivity increased year over year since 2020 at 4.3% to 4.6% in 2023.” [iv]
Every state has some type of workers’ compensation regulation, and many reference an employer’s right to move to deny or reduce payable benefits if an injured worker was intoxicated or otherwise under the influence of drugs at the time of an accident. In some states, the workers’ comp law includes specific drug testing requirements. In Colorado, a state without a mandatory or voluntary drug testing law, an employer’s program must include the collection of a split specimen that can be used for a confirmatory retest, and the test must take place at a certified laboratory in order to qualify to challenge workers’ comp claim. In Mississippi, a state with a voluntary drug testing law, an employer must drug test in accordance with the procedural requirements in the state’s voluntary law in order to successfully challenge a workers’ comp claim.
Unemployment Compensation Law. Each state typically has an unemployment compensation law. As in the case of workers’ compensation, some states have specific drug and alcohol testing requirements included in the unemployment comp law in order for employers to successfully challenge a claim. Missouri, another state without a mandatory or voluntary drug testing law, includes extensive drug testing requirements as part of its unemployment comp law. These requirements include use of a certified lab and compliance with U.S. Department of Transportation drug and alcohol testing procedures. Other states have similar requirements.
Case Law. It is never sufficient to simply research a state’s drug testing statute or regulation. To ensure complete compliance with all legal requirements, a review of applicable case law is needed. All states have some related case law decisions that serve to clarify a statute or regulation or, in states without mandatory drug testing laws, to establish legal guidelines or requirements. California is a good example of a state without a drug testing statute as found in Iowa or Kansas, but with several precedent-setting case law decisions that serve to shape the legal landscape for drug testing in the Golden State. In New Jersey, the Hennessey v. Coastal Eagle Point Oil decision from 1992, while supporting random testing of certain workers, also put forth specific policy components that employers would be wise to incorporate into their programs.
Conclusion
Of course, there are other laws within a state that can affect a drug testing program including laws that pertain to disability issues, treatment, lawful activities, discrimination and, of course, medical marijuana among others. Certainly, some federal laws like the Americans with Disabilities Act come into play as well, especially regarding alcohol testing. Be aware of all the laws in each of the states in which you operate and incorporate into your drug testing policy all that apply to ensure complete compliance.
Let ClearStar help you design a drug-free workplace program with state-of-the-art drug testing that complies with the state laws that apply to your company. To learn more about drug testing, contact ClearStar.
End Notes
[i] Workforce Drug Test Cheating Surged in 2023, Finds Quest Diagnostics Drug Testing Index Analysis of Nearly 10 Million Drug Tests. May 2024. https://newsroom.questdiagnostics.com/2024-05-15-Workforce-Drug-Test-Cheating-Surged-in-2023,-Finds-Quest-Diagnostics-Drug-Testing-Index-Analysis-of-Nearly-10-Million-Drug-Tests
[ii] Ibid
[iii] Ibid
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State Drug Testing Law 101: Knowing the Basics Is Critical to Your Success
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