State Laws Dictate Drug Testing Policy Content

By Current Consulting Group (CCG) Compliance Team This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein. A well-written, comprehensive drug testing policy is the cornerstone of any successful drug-free workplace program.  A good policy accurately reflects a company’s drug testing objectives and clearly articulates prohibited behavior as well as the consequences for violations of the policy. And it describes who is subject to drug testing, under what circumstances testing will occur, and how it will be conducted. While is always a best practice to have a written policy, some state laws require it and actually mandate the content of that policy. Additionally, some states require employers to make the policy available to employees and job applicants. Iowa’s law is a good example of this. It includes the following: “Drug or alcohol testing or retesting by an employer shall be carried out within the terms of a written policy which has been provided to every employee subject to testing, and is available for review by employees and prospective employees.” Iowa’s statute also requires that a copy of the policy be provided to the parents of employees who are minors, that the policy articulate disciplinary or rehabilitative actions an employer may require of someone who tests positive for drugs or alcohol, that it describe substance abuse awareness services provided by the company, as well as a host of other content requirements. In Vermont the law states: “The employer shall provide all persons tested with a written policy that identifies the circumstances under which persons may be required to submit to drug tests, the particular test procedures, the drugs that will be screened, a statement that over-the-counter medications and other substances may result in a positive test and the consequences of a positive test result.” Montana has one of the more detailed requirements concerning the content of a policy. It states that, “At a minimum, the policies and procedures must” explain:

• federal and state legal sanctions for illegal drug activities;
• educational services regarding the dangers of drug abuse;
• employee assistance program services;
• penalties for violations of the policy;
• types of controlled substances to be tested for;
• drug testing procedures;
• how disputes will be resolved; and
• a detailed confidentiality statement.

Of course, not all states have drug testing laws and some that do, do not have specific policy content requirements. Maine, however, is not one of those states.  Maine has one of the most restrictive drug testing laws in the country and an employer’s policy must be submitted to the state Department of Labor for approval prior to the start of a drug testing program. On the other end of the spectrum there are nearly a dozen states that have voluntary laws that offer workers’ compensation premium discounts to employers that conduct drug testing in accordance with the law. Most of these laws have very specific policy content requirements. Such a policy may have to be submitted to an agency of the state or to an insurance provider for approval.  Some of these states, like Ohio, provide sample policies for employers to use in crafting their own policy. These are just a few examples of state law requirements relative to drug testing policies. Employers are well advised to review the state laws that apply to them to ensure that their drug testing policies meet all applicable legal requirements. A word of caution: even if a state’s drug testing law does not include a dedicated section on policy content, the law itself typically dictates what should be included in a workplace drug testing policy. No company should conduct drug testing without a policy in place.  And it is imperative that a policy be reviewed by a policy expert at least annually to ensure that it still reflects the company’s objectives and complies with all applicable state and federal laws. Contact ClearStar to learn more about state law requirements and drug testing policies. © 2010-2023 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required.

At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.