Drug and Alcohol Testing Rules and How Legalized Marijuana Affects the Workplace

With more and more states legalizing marijuana for medical purposes and/or for recreational purposes, many employers are unsure what they can and cannot do in regards to drug and alcohol testing and substance abuse policies.

There is no federal law that prohibits drug and alcohol testing, nor are there any federal regulations providing specific requirements for drug and alcohol testing for private employers. Some states do have specific requirements, so it’s important for employers to be aware of the rules in place in each state for which they have employees to remain in compliance. Listed below are brief summaries by state of rules relating to drug and alcohol testing and medical or recreational marijuana in the workplace where either have been legalized. 

Alabama

There is no comprehensive law addressing workplace drug and alcohol screening.

Alaska

Employers may require drug and/or alcohol testing of both applicants and employees for business-related reasons. Before an employer can enforce mandatory drug and alcohol testing, employees must be given at least 30 days’ written notice of the drug and alcohol testing policy. Employers are also required to notify all applicants that mandatory drug and alcohol testing will take place. Before the employer can take action against an applicant or employee for a positive drug or alcohol test result, the result must be confirmed using a different analytical method. While Alaska has legalized medical marijuana and recreational marijuana for those over age 21, neither law require an employer to allow or accommodate the use of or possession of marijuana in the workplace. Zero tolerance workplace policies are still enforceable.

Arizona

Employers are permitted to require drug and alcohol testing of employees and applicants for any business-related reason (i.e., ensuring workplace safety, investigating workplace accidents, reasonable suspicion of drug or alcohol use, etc). Employers are also allowed to require employees to submit to random drug and alcohol screenings. Employers must have a written drug and alcohol testing policy which is distributed to all employees. Employers must also notify all applicants of the drug and alcohol testing required. Under Arizona’s Medical Marijuana Act, employers cannot discriminate against an employee who is legally registered as a qualified patient of medical marijuana. Employers cannot take any adverse action for a positive marijuana result for qualifying patients of medical marijuana unless the employee used or possessed any drug during work hours, the employee performs a “safety-sensitive” position (such as operating heavy machinery), or if failure to take adverse action would cause the employer to lose a monetary or licensing related benefit under federal law.

Arkansas

There is not currently a comprehensive law addressing drug and alcohol testing. Medical marijuana has been legalized in Arkansas and employers are prohibited from discriminating against an employee or applicant based on the individual”s current or previous status as a qualifying medical marijuana patient. Employers are not required to allow any applicant or employee, regardless of status of medical marijuana, to use, possess, or be under the influence of any drug during working hours.

California

Employers have the right to require employees and applicants to submit to a drug and alcohol screening. While both recreational use and medical use of marijuana have been legalized in California, employers are still permitted to enforce a drug free workplace program. Any employer with a government contract is required to implement a drug-free workplace policy under California’s Drug-Free Workplace Act.  Note: Some cities, such as San Francisco, have their own requirements for drug and alcohol testing. Be sure to check local laws as well as state and federal laws.

Colorado

There is no comprehensive law regarding drug and alcohol testing. While both recreational use of marijuana and medical marijuana are legal in Colorado, the Colorado Supreme Court has ruled that employers are still permitted to enforce a drug free workplace policy because the use of marijuana is illegal based on federal law.

Connecticut

Employers must inform applicants at the time of application for employment of the requirement to submit to a drug screening via urinalysis. Employers may require a urinalysis drug test when they have reasonable suspicion that an employee is under the influence of drugs or alcohol. Employers are also permitted to require random drug screening via urinalysis when allowed under federal law, when the employee’s position has been designated a “high-risk” or “safety-sensitive” position by the Connecticut Labor Commissioner, or when the drug screening is part of an Employee Assistance Program that the employee voluntarily participates in. Under Connecticut’s Medical Marijuana Act, employers are prohibited from discriminating against an employee for being a qualified patient of medical marijuana or a primary caregiver for a medical marijuana patient. Employers are still permitted to prohibit the use of marijuana during working hours regardless of the medical marijuana status of the employee.

Delaware

There is no comprehensive law regarding drug or alcohol testing. Under Delaware’s Medical Marijuana Act, employers are prohibited from discriminating against applicants and employees based on the individual’s status as a medical marijuana cardholder. Employers can only take action against an applicant or employee who is a registered medical marijuana cardholder for a positive drug test result for marijuana if the individual used, possessed or was under the influence of marijuana during working hours or at the employer’s place of employment.

Florida

Employers are permitted to require random drug and alcohol testing for applicants and employees. When an individual is a qualified patient of medical marijuana, employers are not required to make any exceptions to their existing drug and alcohol policy for the individual.

Georgia

There is no comprehensive law regarding drug or alcohol testing. While Georgia has legalized medical marijuana, employers can still enforce zero tolerance policies which require employees to have no drugs or alcohol in their system (regardless of whether the actual use was on or off duty).

Hawaii

Employers may require employees and applicants to submit to a drug and alcohol screening but before doing so must provide the individual being tested with a written statement including a list of substances to be tested for and a statement that over-the-counter and prescription drugs may result in a positive test result. If the employer performs the screening on-site and receives a positive result, the applicant or employee must be referred to a licensed laboratory for a second test within four hours of the first test.

Idaho

Employers are permitted to require employees and applicants to participate in drug and alcohol testing. The employer must have a written policy which lists the reasons test my be performed (i.e., pre-employment, post-accident, reasonable suspicion, random, etc). The policy should also indicate that a positive test result may result in disciplinary action, up to and including termination.

Illinois

There is no comprehensive law regarding drug and alcohol testing. Under the Illinois Drug Free Workplace Act, employers granted government contracts must certify that their workplaces will remain drug free. Employers cannot discriminate against individuals who are qualifying medical marijuana patients strictly based on their status as a qualifying patient, however these individuals are still subject to the employer’s workplace drug and alcohol policies.

Indiana

There is no comprehensive law regarding drug and alcohol testing. Contractors and subcontractors with a public works contract of at least $150,000 are required to have a drug testing program.

Iowa

Employers can require drug and alcohol testing for applicants and employees. Before testing, employers must have a detailed written policy regarding drug testing which is distributed to every person subject to testing. Employers must also implement an employee awareness program where employees can access help for substance abuse (such as an Employee Assistance Program). Any positive test results must be confirmed by a second test using a different analytical approach before any adverse action can be taken. The first sample taken for the first test should be large enough to allow for a second test to be done using the remaining portion of the original sample. In some instances, an employer with 50 or more employees may be required to pay for rehabilitation for an employee who tests positive for alcohol when that employee has worked for the employer for at least 12 of the last 18 months and the employee agrees to receive the rehabilitation. It is important to note that drug testing via a hair sample is only allowed for applicants and not for current employees.

Kansas

There is no comprehensive law addressing workplace drug and alcohol screening.

Kentucky

There is no comprehensive law addressing workplace drug and alcohol screening.

Louisiana

Employers may require drug and alcohol testing for applicants and employees as long as samples are collected in a laboratory certified for forensic urine and/or hair drug testing. Positive drug test results must be confirmed before any adverse action is taken against an individual.

Maine

Employers may require drug testing of employees and of applicants after an offer of employment has been made. Employers must develop a written policy approved by the Maine Department of Labor and provide the approved policy to all employees at least 30 days before the policy becomes effective. Employers with at least 20 employees must have an employee assistance program certified by the state’s Office of Substance Abuse prior to implementing the drug testing policy. If an employee has a positive test result, employers are required to offer employees up to six months in a treatment program before any adverse action is taken against the employee. Employers cannot take action against an individual solely based on the individual’s status as a qualified medical marijuana patient or primary caregiver of a medical marijuana patient. Nor can an employer take adverse action (including refusal to hire) against an individual at least 21 years old because the individual consumed marijuana off the company’s property. Even with legalized medical and recreational marijuana, an employer can discipline any employees who use, possess or are under the influence of marijuana in the workplace.

Maryland

Employers are permitted to require drug and alcohol testing. If an employer receives a positive test result, they are required to provide the individual with a copy of the lab test results, a copy of the employer’s written drug testing policy, a copy of the provisions of the law that allow an individual to request independent testing of the same sample to confirm test results and a written notice of any intended adverse action the employer plans to take based on the positive test result. These items must be provided to the individual either in person or via certified mail within 30 days of the original test date.

Massachusetts

There is no current comprehensive law regarding drug and alcohol testing. While medical and recreational  marijuana have been legalized in Massachusetts, employers are not required to allow the use of marijuana in the workplace.

Michigan

Employers are permitted to require drug and alcohol testing for applicants and employees. While medical marijuana has been legalized in Michigan, employers can still enforce zero tolerance drug policies.

Minnesota

Employers can require drug and alcohol testing for applicants (post job offer) and employees. Employers must implement a written policy and must use a laboratory meeting certain criteria (click here for more information). Under Minnesota’s Medical Marijuana program, employers cannot discriminate against an individual based on their status as a qualified patient of medical marijuana and employers can only take adverse action for a positive marijuana test result if the individual used, possessed or was under the influence of medical marijuana during work hours or while on company property.

Mississippi

Employers are permitted to require drug and alcohol testing of applicants and employees. The employer must have a written policy and must distribute the policy to all employees subject to testing at least 30 days prior to implementing the policy. Applicants must be provided notice in writing at the time of application that drug testing will be required.

Missouri

There is no comprehensive law addressing workplace drug and alcohol screening.

Montana

Employers may require drug and alcohol testing of applicants and employees with safety, security or fiduciary duties, or who work in “hazardous work environments.” Employers must establish a written policy that must be available to all employees at least 60 days prior to original implementation or any change to the policy. Under the Montana Medical Marijuana Act, employers are not required to accommodate the use of marijuana in the workplace.

Nebraska

Employers may require drug and alcohol testing of applicants and employees. Employers with at least six employees must comply with Nebraska’s drug and alcohol testing law (click here for more information).

Nevada

There is no current comprehensive law regarding drug and alcohol testing. Under the Nevada Medical Marijuana Act, employers are not required to allow the use of marijuana in the workplace nor are employers required to change the working conditions of an individual who is a qualified medical marijuana patient. Employers are required to attempt to make a reasonable accommodation for an employee who is a qualified medical marijuana patient as long as the employee still completes all responsibilities of their position and the accommodation would not pose an undue hardship on the employer or pose a threat of harm to property or individuals at the work site.

New Hampshire

There is no comprehensive law regarding drug or alcohol testing. While medical marijuana is legal in New Jersey, employers are not required to allow the use of marijuana in the workplace.

New Mexico

There is no comprehensive law addressing workplace drug and alcohol screening.

New York

There is no current comprehensive law regarding drug or alcohol testing. New York has legalized medical marijuana, however employers are not required to accommodate an employee under the influence of marijuana when the employee is unable to perform their job duties to the use of marijuana.

North Carolina

Employers are permitted to require drug testing for applicants and employees. The North Carolina drug testing law does not include alcohol testing. For more information regarding the requirements of sample collection, testing and notification requirements click here.

North Dakota

Employers are permitted to require drug and alcohol testing for applicants and employees. Medical marijuana use is legal in North Dakota, however employers are permitted to take adverse action against an employee for the use or possession of marijuana in the workplace or for being under the influence of marijuana during work hours.

Ohio

There is no current comprehensive law regarding drug testing for applicants or employees. Ohio has legalized the use of medical marijuana, however employers can still enforce a zero tolerance, drug free policy in the workplace.

Oklahoma

Employers can require drug and alcohol testing for applicants and employees. The employer must have a detailed written policy regarding drug testing that must be given to all employees at least ten days prior to implementation of the original policy and any future changes to the policy. For more information regarding the standards for drug testing Oklahoma, click here.

Oregon

Employers may require drug or alcohol testing for applicants and employers. If a positive result is received, the employer must confirm the result prior to taking adverse action against the individual. While medical use of marijuana is legal in Oregon, employers are not required to allow the use of marijuana in the workplace for any employees.

Pennsylvania

There is no current comprehensive law regarding drug or alcohol testing. Under Pennsylvania’s medical marijuana program, employers are prohibited from discriminating against an individual solely based on their status as a qualified medical marijuana patient. Employers may discipline any individual who is under the influence of marijuana during working hours.

Rhode Island:

Employers may require drug and alcohol testing of applicants and employees. Any positive results must be confirmed before any adverse action is taken. Employers are also required to refer any individual with a positive test result to a licensed substance abuse professional. While medical use of marijuana is legal in Rhode Island, employers may prohibit the use of medical marijuana in the workplace. Employers are prohibited from taking adverse action against an individual based on their status as a qualified medical marijuana patient.

South Carolina

There is no comprehensive law addressing workplace drug and alcohol screening.

South Dakota

There is no comprehensive law addressing workplace drug and alcohol screening.

Tennessee

There is no comprehensive law addressing workplace drug and alcohol screening.

Texas

There is no comprehensive law addressing workplace drug and alcohol screening.

Utah

Employers are permitted to require drug and alcohol testing for applicants and employers. The employer must have a written drug testing policy which has been given to all employees and must be made available for review by all applicants. Before adverse action can be taken against an individual based on a positive test result, the test result must be confirmed.

Vermont

Employers are permitted to require drug and alcohol testing for applicants and employees when certain requirements are met. Both applicants and employees must be provided with a written policy which lists when a drug test may be required, how the drug test will be performed, what drugs will be tested and the consequences of a positive test result. The policy must also include a statement that over-the-counter and prescription medications may result in a positive test result. Applicants can only be required to participate in a drug test after an offer of employment has been made. An employer must have cause to suspect that an employee is under the influence of drugs or alcohol during work hours in order to require an employee to participate in a drug or alcohol test. Employers must have a rehabilitation program for alcohol or drug abuse available to employees. If an employee’s test results are positive, the employer cannot terminate the employee’s employment if the employee agrees to participate in the rehabilitation program and successfully completes the program.

Virginia

There is no comprehensive law addressing workplace drug and alcohol screening.

Washington

There is no comprehensive law addressing workplace drug and alcohol screening.

West Virginia

Employers may require drug and alcohol testing for applicants and employers as long as all requirements are met from the West Virginia Safer Workplaces Act (see our previous post about this law here). While medical use of marijuana is legal in West Virginia, employers must not discriminate against an individual based on their status as a qualified medical marijuana patient. Employers are not required to accommodate the use or possession of medical marijuana in the workplace and are permitted to discipline employees under the influence of marijuana during working hours.

Wisconsin

There is no comprehensive law addressing workplace drug and alcohol screening.

Wyoming

There is no comprehensive law addressing workplace drug and alcohol screening.