State drug testing laws: The three most common questions

By Bill Current, president and founder of the Current Consulting Group and publisher of Current Compliance*

State drug testing laws can be complicated. Why? First, because there are so many of them. Second, because there are various kinds. For instance, there are:

• Mandatory drug testing laws that apply to all employers within a state who conduct drug testing.
• Voluntary laws that only apply to companies that participate in special programs intended to incentivize and reward employers who conduct drug testing.
• Workers’ and unemployment compensation regulations that allow employers to move to deny benefits to individuals who test positive.
• Industry-specific laws that are mandatory for employers in certain industries and/or who have contracts or grants with the state.
• Legal marijuana laws that often contain workplace-related language explaining restrictions that apply to the drug testing of marijuana users.

Of course, in addition to state laws, there are case law decisions that have a direct effect on drug testing (California is a prime example of a state without a mandatory drug testing law that relies on court decisions to govern how employers conduct drug testing). And, as if state laws were not enough, there are federal regulations such as those from the U.S. Department of Transportation (DOT) that require certain employers to conduct drug and alcohol testing and dictate how, when and whom.

I have spent much of my 30+ years in the industry monitoring, evaluating and sharing information about state drug testing laws. During that time, the three most common questions employers ask have remained the same:

1. Do DOT regulations trump state drug testing laws?
2. Which state law applies when a company is located in multiple states?
3. What is the difference between a mandatory and a voluntary law?

Q & A

These questions bring up some important issues worth understanding so employers are able to maintain a legally defensible, completely compliant program.

1. Does federal drug testing law pre-empt state drug testing law?  In a word—Yes! DOT’s drug and alcohol testing regulations, for instance, which apply to many employers in various transportation industries (trucking, airlines, transit, etc.) pre-empt state legal requirements or restrictions, including in states where marijuana has been legalized.
   
   However, it is important to understand that the DOT requirements only apply to covered employers who test specific workers functioning within the scope of the federal regulations. The same employers may test the same employees or even non-covered employees differently as part of a non-DOT drug testing program. This is fine as long as the non-DOT policies don’t interfere with the company’s compliance with the federal regulations. Hence, in non-DOT testing circumstances, state law requirements and conditions come into play.
   
   It is also worth mentioning that many state drug testing laws and regulations mirror the federal regulations, at least in part if not entirely.
   
   
2. If a company has locations in multiple states, which state law applies? The simple answer is all of them.
   Some employers make the mistake of assuming that the law of the state where they are headquartered is the only one that applies when administering a drug testing program. For multi-state employers, with locations in many states, it is necessary to comply with all of those states’ laws. This does not mean that a multi-state employer must have a separate policy for each state. Most differences that exist between various states can be covered in a series of addendums to the base policy.
   
   
3. What is the difference between voluntary and mandatory drug testing laws?  “Voluntary” law may sound like an oxymoron. But many states have voluntary drug testing laws that offer specific incentives to employers to conduct drug testing. Participation on the part of employers is voluntary. For instance, in Florida if an employer chooses to participate this type of special program, that company can qualify for a 5% discount on its workers’ compensation premiums. In order to qualify for the discount, that company must comply with the drug testing requirements of the state’s voluntary law.  Outside of a state’s voluntary program employers are free to conduct drug testing as they wish, within reason and in compliance with any other applicable state laws.
   
   Many states have mandatory drug testing laws that apply to employers with operations in that state.  For instance, Oklahoma has a mandatory drug testing law. If you are an employer in Oklahoma and you wish to conduct drug testing, you must comply with the law.  There are typically no incentives offered in exchange for compliance in states with mandatory laws.

Conclusion
A lot goes into understanding all of the nuances of each state’s various laws that can affect drug testing. Simply searching on the internet for drug testing laws will likely fail to show the other state laws and government agency regulations that have a direct impact on how drug testing can be conducted (the New York Dept. of Labor guidelines on testing for marijuana is a perfect example).

Find the state drug testing law information you need when you need it at CurrentCompliance.org. When you subscribe make sure to mention that you are an NDASA member and receive a special NDASA discount.

*Current Compliance is a comprehensive on-line database of state drug testing laws and other laws that impact drug testing. NDASA members receive special pricing on a one-year or multi-year subscription.