4 Harshest States for Employer Drug Testing Policies

Written by Lucas Kibby, CleanFleet

You have heard us say that all employers should make sure their drug testing policies are legal under their state law(s). Some states do not have drug testing regulations, others offer workers’ compensation premium discounts, and others are so specific that your policy could easily be unlawful.

As we have seen over the years, drug laws and standards are changing, and states are no longer uniform in their existing drug laws or drug testing requirements or restrictions. Some U.S. states have laws that include penalties that are far harsher than others, some states restrict types of testing circumstances (like Random testing) and specimens permitted in a drug test, and some states punish drug possession, manufacturing, and distribution with a penalty of serious prison time.

But which states have the toughest drug laws, and what exactly are those laws? The following states are currently well-known for their harsh drug laws, testing requirements, or stiff penalties.

A Word of Caution

Just because you may not be aware of a rule, you or your company must still follow them. You can’t say “I didn’t know” and get away with non-compliance. Whether you are starting a testing program from scratch or updating an existing program, keeping up-to-date on state laws is essential.

Circumstances for testing include: pre-employment, reasonable suspicion, post-accident, random, follow-up, and return-to-duty testing.

Specimens permitted vary by states, and options include: urine, blood, saliva, hair, breath, and other broadly defined terms. However, Oregon law does states some specifics, “bodily fluid obtained from a live person”.

Another important thing companies must note, federally regulated employees have specific requirements to follow and trumps state laws.

If you want to know more about what should be in your company’s drug testing policy in the various states your company may have to comply with, give the experts a call at CleanFleet, 503-479-6082.

1. Vermont

According to Alere Laboratories in the August 2016 State-by-State Legal Status Guide, Vermont’s drug testing law is one of the most restrictive in the country.

Vermont’s drug testing law prohibits random testing. In fact, all other types of testing are permitted but restricted. Basically, probable cause needs to exist.

The company’s drug testing panel must include Schedule 1 drugs and any others listed in the statute. The state also limits the specimens for testing. Testing for drugs must only come from urine or hair specimens. For alcohol testing, breath is only allowed, and all BAC levels of 0.02 shall be reported as positive and a confirmation is required within 10-20 minutes after screen. Blood can be allowed for both drugs and alcohol testing, but only when requested by the donor.

If this isn’t restrictive enough, employers must be aware of the Employee Assistance Program (EAP) statute in the law. Employers must have an EAP or be able to refer employees to available services in the community.

Lastly, the law only refers to lab-based testing and provides qualifications for labs (not for instant testing devices).  All lab-based testing must be performed at a certified laboratory approved by Vermont Department of Health.

Regarding Vermont’s other drug laws, the minimum possession of marijuana to constitute a felony any greater than 1 ounce. Also, the minimum sentence for 4 ounces or more of marijuana is 3 years in jail.

2. Maine

While drug testing is permitted in Maine, its laws place many restrictions on employers (safety-sensitive positions, documented justification, etc.). Regarding random testing, Maine’s law restricts how and when these tests can be conducted.  Also, the state’s Department of Labor (DOL) regulations add additional restrictions on random testing:

• If an employer and his or her employees reach a collective agreement on random drug testing, an employer may conduct random drug testing according to the agreement.
• If an employer does not have a collective bargaining agreement, he or she may still conduct drug testing of safety-sensitive positions.
• If an employer has 50 or more employees not covered by a collective bargaining agreement, then the following conditions must be met:
  • The program must be developed by a committee of 10 employees eligible to be tested.
  • Selection for testing must be conducted by someone not under the influence of the employer from an anonymous list.
  • The program developed by the employee committee must be approved by the state Department of Labor.

Even the specimens that can be collected is heavily defined. According to the DOL, only urine is permitted and blood can be tested under specific circumstances. Lab-based saliva testing may eventually be permitted only after regulations developed by SAMHSA are finalized.

Only certified labs are able to collect or test the specimens, specimens are to be stored by lab, employers must have supervisors trained and provide employee education, and a company with more than 20 employees must have an EAP in order to drug test – and the program must be certified by the Department of HHS. The law also requires collections to be taken in a medical facility, but the law specifically permits on-site tests, thus adding more confusion for employers.

3. California

Although California does not have drug testing legislation, case law affects those who can be tested and under what circumstances. Additionally, San Francisco has an ordinance that restricts drug testing in a number of ways, more details to follow.

The state of California strictly enforces privacy laws, laboratory licensing regulations, and labor laws. Due to this, applicant testing for safety-sensitive occupations is upheld by case law; probably permitted for other testing circumstances, but not in case law. Also, post-accident testing is permitted only if drug abuse is suspected and best limited to safety-sensitive workers. Return-to-duty is restricted to safety-sensitive positions and random testing is usually not recommended, regardless of industry.

For example, in the case of Loder v. Glendale, the court established that an employer must demonstrate a competing interest of compelling need to justify a drug test that would otherwise constitute an invasion of privacy. Also, in Kraslawsky v. Upper Deck, the court found that an employer must clearly demonstrate reasonable suspicion.  Without such, a drug test would be considered a random test and thus an invasion of privacy.

Regarding San Francisco’s ordinances, employer’s rights are very limited on when and who may be tested. Post-accident testing and random testing is prohibited in the city, and reasonable suspicion is allowed if there are reasonable grounds to believe the individual’s faculties are impaired on the job AND if there is clear and present danger to the physical safety of the employee or others.

The city’s law only refers to urine and blood testing, and testing is limited to substances that are likely to impact an individual’s ability to perform their job safely.

4. Florida

In 2009, Florida was recognized for its stringent drug laws and penalties and is widely considered the toughest in the country. Florida punishes even small-time, petty marijuana possessors quite harshly. Marijuana possession of less than 0.7 ounces will lead to a misdemeanor, over 0.705 ounces is a felony, and under 20 grams can lead to an entire year in prison. Growing or manufacturing marijuana or other types of drugs is considered a felony punishable by up to 10 years of prison time.

Florida enacts a sliding scale system which has little sympathy for users of hard drugs; a first-time offender who is convicted with possession of just a small quantity of cocaine can receive a sentence of up to five years in prison. There is also a fine of $5,000, and courts won’t hesitate to assess this steep financial penalty.

In fact, any felony conviction means Floridians lose their right to vote, essentially for life.

Then there’s the fact that selling within 1,000 feet of “a school, college, park, or other specified areas” can result in a $10,000 fine and a maximum of 15 years in prison in Florida.

When it comes to the workplace, Florida has a voluntary drug testing law that, if complying with the requirements, companies may qualify for a 5% discount on their workers’ compensation premiums.

To qualify, pre-employment, reasonable suspicion, post-accident, and follow-up testing is required. For specimens allowed for testing, the law is broadly defined though Florida lab regulations only permit urine testing. For instant-testing, employers may not deny or terminate employment based on the initial screen that has not been confirmed by a lab and verified by an MRO – and limits which professionals are permitted to collect a specimen and requires a split-specimen.

Finally, information about EAPs must be provided to employees and all testing and collection labs must be SAMHSA certified or licensed by Florida’s Agency for Health Care Administration.

Other states that are very restrictive to drug testing include Mississippi and Rhode Island.