As more types of drug testing technologies arrive on the scene, it is essential for employers to be aware of laws governing drug testing practices in the workplace. Speaking only of the private sector, Bill Current, president of WFC & Associates, a national consulting practice for testing companies, says that the existence and extent of drug testing laws vary considerably among states.
Among the states that have drug testing laws, two different types of laws exist, and Current explains these as “mandatory” and “voluntary.”
The difference between the two is fairly straightforward. Minnesota, a state that has a mandatory law, says that any employer that practices drug testing in the state must obey the provisions of that specific law. Florida, a state that has a voluntary law, offers an incentive to encourage employers to conduct drug testing. In this specific case, that incentive is a 5% workers compensation premium discount, but in order to qualify for it the employer has to drug test according to guidelines provided by the state.
“The original Florida workers compensation discount law limited drug testing to urine in a laboratory,” explains Current. “A few years ago the legislature passed a law that amended those drug testing guidelines to allow for point-of-collection drug testing but they didn’t change some of the other components of the law that dictate who can actually do a collection. And because they didn’t loosen that up, it still pretty much limits employers to doing lab based testing in the state of Florida within that voluntary law.”
“If you choose not to participate in that voluntary program, you can drug test virtually any way you want to in Florida,” says Current. “The vast majority of drug tests in Florida, I suspect, are done outside of that voluntary law – using oral fluid, hair, point-of-collection devices, etc.”
Variety of state measures
States that have workers compensation discount laws include Alabama, Arkansas, Florida, Georgia, Idaho, Mississippi, Ohio, South Carolina, Tennessee, Virginia, and Wyoming. Virginia’s measure is slightly different, Current explains, because “the discount and what you have to do to get the discount is determined by the insurance company as opposed to states like Florida where it’s determined by the state.”
Within these states that have workers compensation laws, employers that are not participating in the workers compensation discount program have no actual drug testing laws, no mandatory laws, to abide by.
“Of course there are other state laws that apply to drug testing,” Current says, citing the following examples:
Workers compensation denial laws: An employer can move to deny workers compensation if/when an employee gets hurt on the job but then tests positive for drugs.
Unemployment compensation laws: Thesecan sometimes be related to drug testing as well.
Case law: In these instances, a decision in a lawsuit might set a precedent for how employers perform drug testing. For example, Current explains that in the state of California there is no drug testing law, but “there is a lot of case law that has, over the years, essentially established some restrictions on drug testing and developed certain protocols that have to be observed when doing drug testing.”
“In California, random drug testing would be limited to workers in safety sensitive positions, as opposed to Texas which doesn’t have a drug testing law, and employers are free to do drug testing of anybody in their company,” he says.
Challenge across states
It begins to get complicated with employers that do business in multiple states. Current says, “If you’re a multistate employer, you’re constantly grappling with the various state laws that apply to you. The basic rule is that all applicable state laws apply. So if you’re in five different states and each one has a different drug testing law, then in those states, you have to obey those specific laws for each state. So, you would need either five different policies or just have one general policy that covers most everything with amendments for the various different states that you’re in.”
“Every state allows urine drug testing,” Current asserts. “Even in states that restrict drug testing generally, there are no restrictions on doing laboratory based urine testing.”
However, there are a few states that prohibit hair testing and also another few that prohibit oral fluid testing. Maine, Vermont, Hawaii and Puerto Rico prohibit the use of oral fluid testing devices. Current says that it’s not a matter of the state being “against” a certain type of testing, but more a question of how long ago they passed their drug testing law. “Some states wrote their drug testing laws long before oral fluid or hair testing became popular, so the statute of that particular state reflects what was common at that time,” he says.
He says that some states have gone back and amended their laws to specifically permit some of these newer technologies.