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:
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 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.