This article is part of a larger series on Hiring.
Setting up employee drug screening fairly and legally requires awareness of compliance-related rules. Employer drug testing involves finding certified drug screening providers (required in some states), creating a drug testing policy, and budgeting for drug screening costs. Learn what the drug screening rules are in your state with our state-by-state drop-down guide and download and customize our drug testing policy and consent form templates.
Drug Screening Laws: State-by-State
While there are no federal compliance laws covering substance abuse screening, individual states and other regulatory agencies have enacted rules that govern the consent, collection, and use of drug testing samples (i.e., states requiring the employer to provide advanced notice or prohibit random drug testing). View your state rules in the drop-down below for an understanding of drug screening laws.
Employee Drug Screening Requirements
Here are the common requirements for drug screening across states and industries. Consider these as best practice guidelines, even if you’re in a state or industry that doesn’t mandate every one of these.
1. Document Your Drug Screen Policy
Consider adding a substance abuse and drug testing policy to your employee handbook and reviewing it during employee onboarding. You can also choose to notify candidates when conducting interviews that you’ll drug test before hiring. Use the templates we provided above to customize a policy for your business.
Disclaimer: Fit Small Business is a provider of business information, education, and resources and not a law firm. Therefore, please have any policy documents reviewed by your business attorney familiar with applicable state and federal laws before publication and use.
2. Provide Advance Notice
Giving employees advance notice of your drug test policy is a good practice and mandated in some states. For example, Florida requires employers to provide advance notice of 60 days before conducting any drug tests.
3. Find a Drug Screen Provider
Because drug screening is mandated in many industries, it’s easy to find a national provider to test your employees. There are also local options, like urgent care clinics or hospitals, that can assist you. Prices will vary according to the test provider, the drugs being tested for, and the testing method.
Some commonly used providers include:
4. Determine Your Drug Screenings Panels
There is a wide range of drugs and substances that can be screened for on a drug test. Additionally, there are different kinds of panels. Be sure you understand what your paneled test is testing for. In many cases, you can ensure that one or two substances are tested if specificity is important to you.
Some examples of typical testing panels include:
- 6-panel drug test: Typically tests for amphetamines/methamphetamines, barbiturates, cocaine metabolites, marijuana metabolites: tetrahydrocannabinol (THC), opiates (including hydrocodone, hydromorphone, codeine, and morphine) and phencyclidine (PCP).
- 7-panel drug test: Screens for marijuana, cocaine, opiates, PCP, amphetamines, benzodiazepines, and barbiturates.
- 10-panel test: Typically looks for cocaine, marijuana, PCP, amphetamines, opiates, benzodiazepines, barbiturates, methadone, propoxyphene, and Quaaludes.
- 12-panel test: Searches for cocaine, marijuana, PCP, amphetamines, opiates, benzodiazepines, barbiturates, methadone, propoxyphene, Quaaludes, Ecstasy/MDA, and Oxycodone/Percocet.
Screening for Marijuana in States Where Recreational Use is Legal
Even in states where recreational marijuana use is legal, it remains illegal at the federal level. Employers may still choose to screen for it; however, it may be risky to terminate someone for their nonwork recreational drug use in those states if the employee shows no impairment. Such as with alcohol or cigarettes, recreational drug use need not be tolerated on the job.
Some employers choose to either omit the cannabis test or overlook the test results. This is partly because cannabis remains in a person’s system for up to 30 days. Also note that there are a number of cases when candidates or employees utilize marijuana for medical purposes, in which case medical documentation should be able to support the claims. There is not a case, however, in which the employee may be under the influence while on the job or in the workplace.
5. Determine the Right Kind of Test for Your Drug Screen
Testing can vary from having an employee blow into a tube to having a worker submit a blood sample. Some drug screening tests, like urine, are easier to obtain. Other kinds of drug tests are more precise such as being able to detect drugs used within the past four hours. Below are the five most common drug screening tests that can be requested:
A urine test collects a sample of an employee’s urine to test for drug use. It examines the visual, chemical, and microscopic aspects of the urine. This test, which can cost anywhere from $50 to over $100, checks for both illegal and prescription drugs within the system, such as amphetamines, barbiturates, marijuana, and cocaine. Alcohol can also be detected in a urine test but is less common than a breath test. One plus is that a urine test, in some testing laboratories, can provide immediate results.
Saliva testing is helpful if you need to know whether drugs have been used within the last 24 hours. It is accurate, typically costs anywhere from $50 to over $100 per worker, and admissible in most states that allow testing of body fluids. Although you can purchase these tests online and administer them yourself, doing so may be a violation in states that require a third-party testing facility or certified lab.
These tests monitor blood alcohol content (BAC) and are another low-cost option that can be administered directly by the employer in states that don’t require testing to be done by a certified lab. Test kits can be bought online for as low as $15 for a blow tube to over $150 for an alcohol breath testing device.
Blood testing isn’t as reliable as urine testing for drug use, and it’s much more expensive, up to several hundred dollars per test. In general, blood testing for drug use is best saved for when the employee is unconscious, such as after a significant vehicle accident or workplace trauma.
The benefit of using a hair sample is that it can test for drugs as far back as 90 days. However, it’s costly at over $100 per test. Although there are a lot of positives to hair follicle drug testing, it isn’t nearly as popular as urine drug testing, mostly due to its cost, difficulty in testing recent drug use, and longer time to process results.
6. Provide Test Results
Results will be provided to both the employer and the employee, often by the lab itself. However, if you’re in a state that requires you to provide results within 24 hours (South Carolina) or five days (Alaska), you’ll need to make sure this happens to avoid violating state law.
Notify employees of a positive drug test result and give them an opportunity to retake the test, perhaps in a different way. For example, if an employee failed a saliva drug test, you could ask the lab to confirm the test using a urine sample before you take action such as employee discipline or employment termination.
7. Protect Employee Privacy
Because drug test results are medical information, they’re protected in all states by the Health Insurance Portability and Accountability Act (HIPAA), a federal law. Therefore, employee test results can’t be shared without prior authorization from the employee. You’ll need the employee to sign a form allowing the test results to be shared with you, the employer. The form, called a General Consent, is typically obtained at the drug screen lab; however, you can also have your employee sign a company consent form.
Be careful that information about drug test results isn’t shared inappropriately with individuals in your organization or others who have no right to know, such as the employee’s spouse, parents, or co-workers.
If you do any contracting for the federal government, be aware of the Drug Free Workplace Act. It has specific requirements for each of the items listed above, including requiring a written policy, training employees on creating a drug-free workplace, drug test notification, and penalties for noncompliance. It applies to any business doing work for the government.
When to Drug Screen
Some states mandate the conditions under which a drug test can be done, so be sure to learn the rules of your state before conducting a drug test. Here are the most common situations that may be appropriate based on your business location:
Drug testing within the workplace has been shown to reduce absenteeism and improve worker productivity. It also may reduce workers’ comp claims. However, as mentioned above, be aware of laws in all the states where you employ workers to be sure that pre-employment drug screens are allowed.
For instance, privacy laws in California mandate that pre-employment drug screening be consistent and uniform so that no employment discrimination occurs. That means you can’t just drug screen workers of a certain age or protected status; you would have to drug test all new hires doing a similar job in California.
Testing should be required after a workplace incident, such as an accident that caused fatalities, injuries, or expensive damage. Your policy should clearly state this right to test in all cases, but especially in the case of workplace accidents. Most Occupational Safety and Health Administration (OSHA) investigations will include questions about post-incident drug testing.
Another common reason that employers drug test employees is because the employee is behaving in such a way that a manager suspects substance abuse. It’s called “reasonable suspicion” or “probable cause.”
For example, if your sales rep gets in a car accident after a business meeting, could alcohol be to blame? Or if your best forklift operator suddenly crashed into a storage rack, might it be drug-related? In some states, reasonable suspicion is the only valid reason that drug testing is allowed after an employee is hired.
In some states, random drug testing is allowed in addition to drug testing for reasonable suspicion. Of course, random is random, meaning you can’t single out one person for drug testing based on a hunch. If you do, you’re likely to be in violation of anti-discrimination laws from the Americans with Disabilities Act (ADA) to the Age Discrimination in Employment Act (ADEA) or other labor laws.
For example, to set up a random drug screening process, consider screening every third employee based on their hire month or their last name every quarter. That way you’ll cover all employees within a one-year timeframe. You may also randomly select candidates based on their Social Security number or employment ID.
Similar to a new hire situation, some companies drug screen employees as part of a promotion process. This is to ensure the employee is drug-free before they get more responsibility, such as access to a business bank account or direct supervision of staff.
The Department of Transportation (DOT), mandates drug testing for transportation-related jobs, such as airplane pilots, taxi drivers, and anyone with a commercial drivers’ license (CDL)—as well as people who work in emergency response roles. If your business operates in any industry under the jurisdiction of the DOT, you’ll need to abide by their specific guidelines.
Drug Screening Risks
If you choose to run a drug test but don’t do it right, you may have upset employees or legal problems. If you don’t drug test employees and someone gets hurt by an intoxicated employee, you’re liable as well. Below are some of the risks of drug screening vs not drug screening.
Risks of Drug Screening
Risks of Not Drug Screening
As long as it’s legal in your state, drug screening is a great way to improve productivity and reduce costs. Be sure you check your state rules on drug screening as it’s mandated in certain industries and regulated, in some cases, by the federal government (such as with the Department of Transportation and some federal law enforcement entities). We recommend that you execute the pre-employment drug test after the applicant screening phase and as part of the job offer process.