• Decline to promote the employee. • Decline to give the employee additional compensation. • Transfer the employee. • Terminate the employee. • Discipline the employee. • Take any other adverse employment action not otherwise prohibited by law. Delaware Delaware has not enacted any general employment drug or alcohol testing laws. Employee privacy rights do not limit an employer's right to require employees to participate in drug or alcohol testing. General employers are neither prohibited from nor required to establish drug and alcohol testing policies and procedures. Employers generally have discretion in deciding the circumstances for which testing will be required. Courts have recognized an employer’s ability to drug test employees when there are “indications” that drug or alcohol use is occurring in the workplace or that performance problems may be to such use. (Gibbs v. Allen's Family Foods, No. CIV.A. 2012 WL 5830697, at *3 (Del. Super. Apr. 25, 2012)) It is highly recommended that employers who wish to test their employees for drugs or alcohol maintain and distribute a written drug and alcohol testing policy outlining the circumstances under which an employee may be asked or required to submit to testing, procedures to be followed, and consequences for refusing to submit to a test or for a positive result. Showing that such a policy has been received by the employee should also preclude the employee from receiving unemployment benefits. State law does not specify what kind of testing (for example, blood, urine, or hair) is authorized or prohibited by general employers. State law does not specify the substances for which general employers may test. State law does not specify how drug tests must be conducted by general employers. State law does not specify where drug tests must be conducted. State law does not specify any protocol required if a drug test comes back positive, such as re-testing procedures. State law does not specify any legal protections for employees or applicants who test positive for drugs or alcohol. State law does not specify who must pay for the drug test and any follow-up drug test.
action was based on a false positive result and the employer knew or clearly should have known the result was an error. a drug or alcohol rehabilitation program; (3) Reasonable suspicion based on "specific objective and articulable facts and reasonable inferences," that an employee is using or has used alcohol or drugs in violation of the employer's written policy (4) After a person has applied for work but before he has been hired. (5) When investigating an on-the-job accident that either resulted in an injury to a person that could require a report under Iowa's Occupational Safety and Health Statute or property damage over $1,000. (6) As otherwise required by federal law or regulation or law enforcement. alcohol and drug abuse programs. If the employer tests for alcohol, the written policy must establish a cutoff point for a violating alcohol concentration not less than .04 grams of alcohol per 210 liters of breath, or its equivalent. made on any employee involved in a workplace accident only if: • The test is administered by or at the direction of the person providing treatment to the employee. • The employer does not request or suggest that the test be conducted. • The employer lawfully obtains the test results. retest and the cost of such retest. If the employer receives positive test results for a prospective employee, the employer must notify the prospective employee in writing. Re-testing: If the employee requests a retest, identifies an approved laboratory to conduct the test, and pays the employer the fee for the test within 7 days after making the request, a retest must be conducted at the laboratory chosen by the employee. • The results of the retest must be reported to the same MRO who reviewed the initial confirmed positive test results, and the MRO must review the results and issue a report to the employer. • If the results of the retest do not confirm the results of the initial confirmed test, the employer may not take disciplinary action based on the initial confirmed positive test result. An employer may suspend a current employee, with or without pay, pending
to conduct testing of employees must have an Employee Assistance Program certified by the Maine Office of Substance Abuse. employer does not have to pay the employee for periods of time during which the employee is not available to work due to rehabilitation or the employee is medically disqualified. The employer may suspend the employee from active duty to reduce potential safety hazard during the time the employees is in the rehab program. If the employee tests positive a second time after returning to work from rehab program, the employee may be terminated without being offered the opportunity to enter a rehabilitation program again. Maryland Section 17-214 of the Maryland Health-General Annotated Code and Chapter 10 of the Code of Maryland Regulations govern drug and alcohol testing in employment and pre-employment. Any employer may require an employee or job applicant to submit to a test for If an employer has a legitimate business purpose in conducting the test, it may require drug and alcohol testing: • As a condition of employment. • At any time during employment. Pre-employment: An employer that chooses to conduct pre-employment drug and alcohol testing using preliminary screening procedures must register with the Office of Health It is recommended that employers provide employees with a written copy of the employer’s drug and alcohol testing policy, including circumstances when testing may be required, procedures for collection and testing, and consequences for refusing to submit to a test, testing An employer may test for alcohol and controlled dangerous substances. Employers may test: • Blood. • Urine. • Saliva. • Hair (see below) Employers may only test hair for pre-employment purposes, using no Employers that require an individual to be tested for job-related reasons for the use or abuse of any controlled dangerous substance or alcohol must: • Have the test performed by a laboratory. • Inform the individual of the name and address of the testing laboratory at the time of testing. For pre-employment testing, employers may use a preliminary screening procedure that uses a test device that is FDA-approved and easily portable and can be administered at the work site. The device must meet generally accepted If a pre-employment preliminary screening device returns a positive result, the employer must send the specimen to a state-approved lab for testing and must have a MRO review any positive test result after lab confirmation If an employer receives notice from a lab that a test is positive for alcohol or a controlled State law does not specify who must pay for the initial drug test. Applicants and employees who request an independent follow-up test must pay for the cost of that test
individual's reasonable expectation of privacy may violate the Massachusetts Privacy Act. (Mass. Gen. Laws ch. 214, § 1B). Random Drug Testing: To evaluate whether an employer's drug testing policy violates an employee's rights under the Privacy Act, the employer's business interest in determining whether its employees are using drugs must outweigh the employees' right to privacy. For example, random testing has been held to be justified for some employees whose job duties involve a direct threat to the safety of others. (Webster v. Motorola, Inc., 637 N.E.2d 203, 206 (Mass. 1994)). Reasonable Suspicion: Courts will balance an employer's legitimate business interest in investigating suspected drug use against the "significant invasion" of the employee's privacy. For example, a urine testing program did not violate the Privacy Act where: • The employer gave 30 days' notice before initiating any drug testing; • All full-time employees were required to be tested; • The employer had a strong suspicion of drug use; and • Employees used dangerous equipment which required extreme alertness and precision. (Folmsbee v. Tech Tool Grinding & Supply, Inc., 630 N.E.2d 586, 589 (Mass. 1994)) notice (i.e. 30 days) to employees that the employer will be implementing drug testing. It is likely that an employee's privacy interest is stronger for a urine test or blood test than for a hair test. Substances: State law does not specify the substances for which tests can be run. invasion of privacy is smallest when the employee urinates in the privacy of the bathroom and simply submits the urine sample to the medical assistant. Under the Privacy Act, the more the testing intrudes on an employee's privacy interest, the stronger the employer's business interest must be to justify the test. (Harrison, 2000 WL 282446, at *3). related information should be kept private and confidential in a secure location. Courts have confirmed that results of a drug test can contain private information about an employee and that disclosing this information without having a good business reason to do so could violate the Privacy Act. (Webster, 637 N.E.2d at 207). drug tests.
equipment, or vehicles involved in a work-related accident; or • Has violated the employer’s written policy prohibiting use, possession, sale, or transfer of drugs or alcohol while the employee is working or while on the employer's premises or operating the employer's vehicle, machinery, or equipment. (5) Treatment Program Testing: If the employer refers the employee for chemical dependency evaluation or treatment, the employee may be tested without notice during the evaluation or treatment period and or up to two years after completion of the program. Re-Testing: If a confirmatory test is positive, the tested individual may request a confirmatory re-test of the original sample at his own expense. If the re-test produces a different result that the previous test, the employer may not take action against the individual. Within three working days after receiving a test result, the employer must inform the employee or job applicant in writing of both the test result and the right to request and receive a copy of the test result report. If the result is positive on a confirmatory test, the employer must also inform the employee or job applicant of his rights to submit information explaining the positive result and to request a confirmatory re-test at his own expense. Mississippi Employers must follow specified guidelines under Mississippi Drug and Alcohol Testing of Employees law in Employers may conduct employee drug and alcohol testing under certain circumstances, including: • Pre-employment. • Reasonable suspicion. Tested employees should be given a reasonable opportunity to identify any drugs they take for medical conditions or provide Employers may conduct: • Urine testing to determine drug use. • Breath or saliva testing for initial alcohol use. Initial testing or specimen collection may take place on-site or offsite, but specimens must be collected by either: • A physician, registered nurse, or licensed practical nurse; • A qualified laboratory employee; Adverse Action: Employers may temporarily suspend or transfer an employee to another position after obtaining the results Employers must pay the costs of all drug and alcohol tests they request or require.
the random selection and testing process; and (v) a procedure that requires the employer to obtain a signed statement from each employee that confirms that the employee has received a written description of the random selection process. Random selection must be made by a scientifically valid method, such as a random number table or a computer-based random number generator table. (3) Follow-up Testing: Employer may require an employee to submit to follow-up tests if the employee has had a verified positive test. The follow-up tests must be described in the employer's policy and may be conducted for up to 1 year from the time that the employer first requires a follow-up test. (4) Reasonable suspicion: An employee may be required to be tested if the employer has reason to suspect that the employee's faculties are impaired on the job as a result of the use of a controlled substance or alcohol consumption. Supervisory training must be provided for at least 60 minutes on alcohol misuse and an additional 60 minutes on controlled substances use. The training must include the physical, behavioral, speech, and use of controlled substances and alcohol; • the employer's standards of conduct that regulate the use of controlled substances and alcohol; • a description of available employee assistance programs; • a description of the discipline that the employer may impose on an employee if the employee is found to have violated the policy; • identification of the types of controlled substance and alcohol tests to be used; • a list of controlled substances for which the employer intends to test and a stated alcohol concentration level above which a tested employee will be disciplined; • a description of the hiring policy with respect to prospective employees who test positive; • the procedures that will be followed to conduct the testing program, including the resolution of a dispute concerning test results; • a confidentiality provision.
of alcohol or the illegal use of a controlled substance. (N.D. Cent. Code Ann. § 65-01-11) Ohio Ohio has not enacted general employment drug or alcohol testing laws. Employers may require employees to follow the requirements of the federal Workplace Act without risking charges of discrimination. (Ohio Rev. Code § 4112.02(Q)(2)(d)). State law does not specify the circumstances random, reasonable suspicion, etc.) under which testing is authorized or prohibited. State law does not specify any requirements for written policies or written notices to employees or applicants prior to testing for drugs or alcohol. Best practice, however, is to have a written policy outlining the employer’s intentions with drug testing, including procedures and consequences for failed tests and for refusing a test. Contractors on public improvement contracts participating in the Ohio Bureau of Workers' Compensation (OBWC) drug-free workplace program must have a written drug-testing policy describing how testing occurs. (OBWC, Drug-free Safety Program Guide) State law does not specify which kind of testing (urine, blood, hair, etc.) is authorized or prohibited. State law does not specify the substances for which tests can be run. State law does not specify how drug tests must be conducted. State law does not specify where a drug test can or must take place. Ohio law does not specify a protocol to follow if a drug test comes back positive. Taking action following a failed drug test does not violate Ohio's law. A disability does not include any condition caused by current illegal use of any controlled substance except if the employee or applicant is not illegally using a controlled substance and either: • Successfully completed a drug rehabilitation program. • Is participating in a supervised drug rehabilitation program. • Is mistakenly thought to be illegally using a controlled substance. Therefore, an employer is not discriminating against any employee if an employer acts on the basis of that illegal use. Ohio employers cannot require, as a condition of any prospective employee or applicant to pay the cost of a medical examination required by the employer. Courts have not determined whether drug tests are considered medical exams. However, employers using the workers’ comp. drug-free workplace programs must pay for alcohol and drug testing other than requested by an employee or follow-up testing. (Ohio Admin. Code §
employee’s privacy rights. To receive the workers’ comp. discount, employers must give positive test results in writing to the employee within 24 hours of receiving the test results. Employers must also keep records of each test for up to one year. There is no state law requiring re-testing or follow-up tests if an initial test comes back positive. South Dakota South Dakota has not enacted any laws governing general drug testing of employees or applicants by private employers. State law does not specify the circumstances random, reasonable suspicion, etc.) under which testing is authorized or prohibited. State law does not specify any requirements for written policies or written notices to employees or applicants prior to testing for drugs or alcohol. Best practice, however, is to have a written policy outlining the employer’s intentions with drug testing, including procedures and consequences for failed tests and for refusing a test. Specimen: State law does not specify which kind of testing (urine, blood, hair, etc.) is authorized or prohibited. State law does not specify how drug tests must be conducted. State law does not specify where a drug test can or must take place. State law does not specify any legal protections for employees or applicants who test positive for drugs or alcohol. An employer cannot require an employee to pay costs for "medical examinations," which could be interpreted to include drug testing. (S.D. Codified Laws § 60-11-2) Tennessee Tennessee has a voluntary drug free workplace program. There are no other statutes or cases mandating specific drug testing procedures. To qualify for the state’s drug-free workplace program: (1) Pre-employment testing: After a conditional offer of a covered employer must require job applicants to submit to a Employers must give all employees a notice at least 60 days before implementation stating that a workplace program is being implemented, the Specimen is defined as tissue, fluid or product of the human body capable of revealing the presence of alcohol or drugs. All specimen collection and testing for drugs and alcohol must be done under the US Department of Transportation rules for workplace drug and alcohol testing. Employers must use the chain of custody form approved by the state DOL. To qualify for the drug-free-workplace law, an employee or applicant who receives a confirmed positive test result may contest or explain the result to the MRO within 5 To qualify for the law, employers must pay the cost of all initial and confirmation tests that the employer requires. The
possessed, sold, solicited or transferred drugs or used alcohol at work. (3) Fitness-for-duty: Employers must require fitness-for-duty testing if the test is part of the employer’s established written policy and is either: • A routine part of a routinely scheduled employee fitness-for-duty medical examination; or • Routinely scheduled for all members of an employment classification or group. (4) Follow-Up Testing: Employers must require an employee to submit to follow-up drug testing if that employee enters an employee assistance program for or alcohol-related problems or rehabilitation program, unless the employee voluntarily entered the program. (5) Post-accident: Employers must require an employee to submit to drug testing after a work related accident that results in an injury. Testing specimens must be taken: • After administration of medical care. • At the treating facility or designated collection site. (6) Random drug testing or testing for drugs under additional circumstances is Employers must implement a 1-hour education and awareness program about substance abuse in the workplace to be held annually for all employees. Supervisory personnel must complete 2-hours of workplace substance abuse recognition training each year. Records of these programs must be kept by employers.
under the influence of a drug on the job. The employer must also have a bona fide rehabilitation program for alcohol or drug abuse that is available to the employee or available through health insurance. report only confirmed drug test results to the employer. Employers cannot discharge an employee after a positive drug test if the employee agrees to participate in, and successfully completes, a rehabilitation program. The employee may be suspended for the time it takes to complete the program, for up to 3 months. The employer may discharge the employee if a later drug test for probable cause is positive. Virginia There is no general statute requiring or regulating drug testing in either employment or pre-employment. Virginia has a statute on workplace programs, which provides that qualified employers are eligible for up to 5% off of their workers’ comp. premiums for maintaining workplaces. (Va. Code Ann. § 65.2-813.2) There is no state law regulating the circumstances reasonable, suspicion, etc.) under which testing is authorized or prohibited in general employment. The criteria that employers must satisfy in order to qualify for the workers’ comp. discount should be established by the employer’s insurer. Specimen: State law does not specify which kind of testing (urine, blood, hair, etc.) is authorized or prohibited. State law does not specify how drug tests must be conducted. Virginia law does not specify where a drug test can or must take place. State law does not specify a protocol to follow if a drug test comes back positive, such as a re-testing procedure. There are no Virginia laws protecting employees or applicants who test positive for drugs or alcohol. It is unlawful for an employer to require an employee or applicant for employment to pay for a medical examination as a condition of employment. (Va. Code Ann. § 40.1-28)
or alcohol testing laws for private employers generally. Employers are eligible for a workers’ comp. discount in an amount up to 5% of the base rate for the employment classification if the employer complies with a drug and alcohol testing program approved by the Wyoming Workers' Compensation Division. (Wyo. Stat. § reasonable, suspicion, etc.) under which testing is authorized or prohibited in general employment. entitled to unemployment benefits if they choose to quit a job rather than submit to drug testing if the employer did not either: • Inform employees that a drug test could be required; or • Follow its own drug testing policy (Employment Sec. Comm’n of Wyoming v. W. Gas Processors, Ltd., 786 P.2d 866 (Wyo. 1990); Wyoming Dept. of Emp't, Div. of Unemployment Ins. v. Rissler & McMurry Co., 837 P.2d 686 (Wyo. 1992)) blood, hair, etc.) by a private employer is authorized or prohibited. State law does not specify the substances for which tests can be run by a private employer. State law does not specify where a drug test can or must take place. The Wyoming Supreme Court has recognized that a company collecting specimens as part of an employer’s substance abuse testing program generally owes a duty of care in the collection, handling and processing of the specimen to the employee who submits the specimen. (Duncan v. Afton, Inc., 991 P.2d 739 (Wyo. 1999)) positive, such as procedure. There are no known legal protections in Wyoming to protect employees or applicants who test positive for drugs or alcohol. drug test or any follow-up drug test.