What laws should companies be aware of when implementing a drug testing program?

An employer establishing a drug testing policy should take the Americans with Disabilities Act (ADA) into account, be aware of federal anti-drug initiatives that affect government contractors and employers in safety-sensitive industries and be familiar with applicable state laws.

The ADA does not prevent an employer from taking steps to combat the use of drugs and alcohol in the workplace. It specifically allows an employer to prohibit the use of drugs and alcohol in the workplace and to prohibit employees from being under the influence of drugs or alcohol at work. An employer can discharge or deny employment to current users of illegal drugs without fear of being held liable for disability discrimination. Under the ADA, a drug screen is not considered a medical test, and an employer can require applicants to take pre-employment drug tests. Alcohol testing, however, is considered a medical test and may not be performed prior to a conditional offer of employment.

An employer setting up a drug testing program should be aware of federal antidrug initiatives. The Drug Free Workplace Act covers federal government agencies, federal contractors with contracts or purchase orders totaling $100,000 or more and recipients of federal grants. The Act does not require alcohol or drug testing, but testing is authorized as a means to maintain a drug-free workplace.

The U.S. Department of Transportation (DOT) drug testing rules cover employers in the air, rail, trucking and mass transit industries and employers with operations otherwise covered by DOT. Those rules require the testing of employees in safety-sensitive positions for alcohol and illegal drug use. See Am I covered by the U.S. Department of Transportation drug and alcohol testing regulations?

In 2016, the federal Occupational Safety and Health Administration (OSHA) issued a final rule requiring employers to demonstrate a reasonable possibility that employee drug use could have contributed to the reported injury or illness before conducting post-accident drug testing. This guidance was rescinded in October 2018 and OSHA clarified in a standard interpretation that post-accident testing is an acceptable practice.

Most states have laws that address workplace drug use and drug testing. Some states require employers to put their testing program in writing. Other states prohibit disciplinary actions against employees who test positive without a second confirming test, or they require that testing be performed only in state-approved labs. Because states have their own approach to drug testing issues, employers should carefully review the law in the states in which they operate before they adopt a drug testing policy. See SHRM's Multi-State Laws Comparison Tool.