A workplace drug testing policy is often confused with a drug-free workplace program. The two have similar goals but have different responsibilities required of an employer.
Because drug-free workplace programs require employers to implement specific written policies and commit to training and other requirements, it may not be the right fit for most employers. But what if the employer still wants to ensure its employees are not working under the influence? The answer is a drug testing policy.
Drug Free Workplace Program (government compliance-driven)
A drug-free workplace program is a company-wide strategy for addressing illicit drug use, as required under the federal Drug Free Workplace Act of 1988 (DFWA) or comparable state laws. Such programs may be required for employers that receive federal or state contracts or funding, or that operate in regulated industries. If not required, an employer may choose to implement a voluntary program to promote a safe, healthy, and productive work environment.
A strong program includes:
- A clear written policy
- Employee education to build awareness and encourage healthy behaviors
- Supervisor training to help leaders recognize the signs of substance abuse and understand their responsibilities
- Access to counseling or rehabilitation resources for employees who need support
Drug Testing Policy (Employer-driven)
A drug testing policy is employer-driven and is not subject to all of the requirements of a government-mandated program. Employers should consult an employment law expert to craft a policy that defines the program’s goals, identifies which substances are tested, and specifies when testing occurs (such as pre-employment, random, reasonable suspicion, or post- accident). The policy should also outline testing procedures and consequences for violations of company policy.
Employee privacy is a key concern in any drug testing program. It’s critical for employers to provide advance notice of their policy to anyone subject to testing. They should also review their applicable state and local laws for any specific prohibitions or restrictions that may apply.
What Laws Most Impact Drug Testing Polices?
Even employers who are not subject to the federal Drug Free Workplace Act are still subject to federal anti-discrimination, disability accommodations and privacy laws.
The Americans with Disabilities Act (“ADA”)
The ADA prohibits all U.S. employers with 15 or more employees from discriminating against individuals based on a disability. While the ADA does not protect employees who are currently using illegal drugs, it does protect those who are in recovery, receiving treatment for a substance use disorder, or participating in a drug or alcohol rehabilitation program.
The Family and Medical Leave Act (“FMLA”)
FMLA may apply. For covered employers, a qualifying employee may take job-protected unpaid leave to obtain treatment for an alcohol or drug addiction, or to care for a family member receiving treatment. Employers can still enforce performance and safety rules but cannot retaliate against an employee for taking protected leave.
State laws
Like other areas of HR compliance, the patchwork of state and local laws heavily impacts what an employer is allowed to do, including in the area of cannabis use.
Evolving Protections for Cannabis Use
A more recent development in the United States is the growing number of legal protections for recreational and medical cannabis use. Nearly half of all states now permit recreational marijuana, and only five states currently prohibit medical marijuana. Some states, like California, prohibit employers from discriminating against an employee’s off-duty marijuana use, while others offer no such protections.
This creates challenges for multistate employers. The same off-duty behavior can lead to termination in one state but not in others. Laws continue to evolve. South Dakota, Maryland, Nebraska, and Florida all saw legal updates within a span of only six months in 2024. Employers should stay up to date on laws in every state where they have employees.
A strong drug testing program for private employers enforces complete sobriety in the workplace while complying with state-specific laws governing employee off-duty conduct. Employees should understand their employer’s expectations regarding drug use in the workplace and the limits set by the company.
The legal landscape surrounding drug testing and cannabis use is complex. Staying compliant requires regular policy reviews and guidance from qualified HR or legal professionals as regulations continue to change.
This article was prepared with the assistance of Law Clerk Michael Scott.
*This article does not constitute legal advice.