Notable Drug Testing Laws by State

This publication is up to date as of February 25, 2022, and is provided only for educational purposes; it should not be relied upon as legal advice, and it should not be used, in whole or in part, as a basis for establishing employment practices or policies, nor should it be used for resolving disputes or managing risk. Every reader’s circumstances are unique and legal advice should be obtained only from a lawyer with whom the reader has established an attorney-client relationship. Copyright 2022 @ Global HR Research. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of GHRR.

Introduction

As a general rule, states do not compel private employers to drug test their employees.  If employers do decide to test their employees, however, some states regulate the manner in which the testing is to be conducted and the circumstances under which an employer can take action against the applicant or employee.  This non-exhaustive survey is intended to alert the reader to those jurisdictions which may require an employer to act with care in the administration of a drug testing program.  Employers testing in these jurisdictions are advised to consult with their employment law counsel regarding whether their policies and practices comply with state laws. Please note: the following subjects are not within the scope of this article:

  • Drug testing programs designed to comply with voluntary state drug-free workplace laws; and
  • Drug testing programs conducted in compliance with federal laws, e.g., DOT drug testing.

Common State Requirements for Employer Drug Testing

Many states share standard sets of legal requirements for private employers that choose to conduct workplace drug testing, such as requiring the employer to:

  • have written drug testing policies available for review by applicants and employees;
  • provide applicants and employees with notice that they will be subject to a drug test before testing;
  • use methods for testing that are reasonably likely to produce reliable test results; and
  • keep test results and other related information confidential.

Unique State Requirements

Arizona

Marijuana Alert! Arizona law expressly prohibits employers from taking an adverse action against an applicant or employee based upon a mere positive marijuana drug test.  Employers must demonstrate acute or chronic impairment on the job to take an adverse action.  Employers may not discriminate against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

Ariz. Stat § 36-2813

Arkansas

Marijuana Alert! Arkansas law prohibits employers from discriminating against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

AR Const. Amend. 98, § 3(f)(3)(A)

Connecticut

Employers may not require applicants to submit to a urinalysis drug test unless:

  • the applicant is informed in writing at the time of application of the test;
  • the test is conducted by a reliable method; and
  • the applicant is given a copy of any positive urinalysis drug test result.  

Generally, employers may not require employees to submit to urinalysis drug tests unless the employer has reasonable suspicion that an employee is under the influence of drugs or alcohol which adversely affects (or could adversely affect) his job performance.

However, employers may test their employees on a random basis if:

  • random testing of the employee is authorized under federal law;
  • the employee serves in an occupation which has been designated as high-risk or safety-sensitive by the state’s Labor Commissioner or is employed to operate a school bus or other student transportation vehicle; or
  • the urinalysis is conducted as part of an employee assistance program sponsored or authorized by the employer in which the employee voluntarily participates.

Conn. Gen. Stat. Ann. § 31-51, et seq.

Marijuana Alert! Connecticut law impliedly prohibits employers from taking an adverse action against an applicant or employee based upon a mere positive marijuana drug test.  Employers must demonstrate acute or chronic impairment on the job to take an adverse action. Employers may not discriminate against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

Conn. Gen. Stat. Ann. § 21a-408p.

Delaware

Marijuana Alert! Delaware law expressly prohibits employers from taking an adverse action against an applicant or employee based upon a mere positive marijuana drug test.  Employers must demonstrate acute or chronic impairment on the job to take an adverse action. Employers may not discriminate against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

16 Del. Code § 4905A

Hawaii

Employers must provide a written statement to applicants and employees prior to testing that notifies the individual of the specific substances to be tested for and that over-the-counter medications or prescribed drugs may result in a positive test result.

Haw. Rev. Stat. Ann. § 329B-5

Idaho

Employers must give any applicant or employee who tests positive for drugs or alcohol written notice of that test result, including the type of substance involved, and the employee must be given an opportunity to discuss and explain the positive test result with a medical review officer or other qualified person. 

Idaho Code Ann. § 72-1706

Illinois

Marijuana Alert! Illinois law impliedly prohibits employers from taking an adverse action against an applicant or employee based upon a mere positive marijuana drug test.Employers must demonstrate acute or chronic impairment on the job to take an adverse action.  Employers may not discriminate against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.Employers do not need to permit possession or consumption of cannabis at the worksite.

410 ILCS § 705/10-50 &410 ILCS § 130/40

Iowa

If an applicant or employee subject to testing is a minor, the employer must provide a copy of its written policy to a parent of the applicant or employee and obtain acknowledgment from the parent that a copy was received.

Employers must give applicants and employees an opportunity to provide any information which may be considered relevant to the test, including identification of prescription or nonprescription drugs currently or recently used or other relevant medical information. To assist an employee or prospective employee in providing this information, the employer must provide a list of the drugs to be tested. 

Iowa Code Ann. § 730.5

Louisiana

Any employee who tests positive may request in writing to review his records relating to his drug test and any records relating to the results of any relevant certification, review, or suspension proceedings, and the employer must provide such access within seven days of the request. 

La. Stat. Ann. § 49:1011

Maine

Employers may only require or request that an applicant submit to drug testing if:

  • the applicant has been given a conditional offer of employment; or
  • the applicant has been offered a position on a roster of eligibility from which applicants will be selected for employment.

Before drug testing its employees, any employer with over 20 full-time employees must have a functioning employee assistance program. 

Employers must promptly notify any applicant or employee tested of the result and, if requested, a legible copy of the laboratory report. The individual must be given the opportunity to submit information to the employer explaining or contesting the result within three working days after notice of a confirmed positive test result. 

Me. Rev. Stat. tit. 26, § 683-684

Marijuana Alert! Maine’s Department of Labor interprets the state’s marijuana laws to prohibit pre-employment marijuana drug testing.  Maine law also prohibits employers from discriminating against applicants or employees for being medical marijuana card holders. Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

Me. Rev. Stat. tit. 22, § 2423-E

Maryland

Employers may only drug test employees for “job-related reasons.” Employers who test employees must provide written notice to any individual who tests positive that includes:

  • a copy of the laboratory report indicating the test results;
  • a copy of the employer's written policy on the use or abuse of controlled dangerous substances or alcohol;
  • if applicable, written notice of the employer's intent to take adverse action; and
  • a copy of provisions that permit the employee to request verification of the result by independent testing of the same sample.

Md. Code Ann., Health-Gen. § 17-214

Massachusetts

Marijuana Alert! Massachusetts law prohibits employers from discriminating against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

Mass. Gen. Laws ch. 94I, § 2; 151B, § 4(16)

Minnesota

Employers may request or require an applicant to undergo drug testing only after a job offer has been made to the applicant and if the same test is requested or required of all job applicants conditionally offered employment for that position. If the job offer is withdrawn, the employer shall inform the job applicant of the reason for its action.

Employers may not drug test employees unless:

  • the testing is conducted on a random selection basis and the tested employee is in safety-sensitive position or is a professional athlete subject to a collective bargaining agreement that permits random testing; or
  • an employer has a reasonable suspicion that an employee:
    • is under the influence of drugs or alcohol;
    • has violated the employer's written work rules prohibiting the use, possession, sale, or transfer of drugs or alcohol while the employee was working or while the employee was on the employer's premises or operating the employer’s equipment;
    • has sustained or caused another to sustain a work-place injury; or
    • has caused or was involved in a work-related accident.

Prior to testing, employers must receive written acknowledgement from the applicant or employee that the individual has received the employer's drug and alcohol testing policy.

Within three working days after receipt of a test result report from the laboratory, the employer must notify the individual of the test result . If an employee or applicant tests positive for drug use, the employer must provide written notice of the individual’s right to explain the positive test and to state that the employer may request that the individual indicate any over-the-counter or prescription medication that the individual is currently taking or has recently taken and any other information relevant to the reliability of, or explanation for, a positive test result.

Employers must allow individuals who test positive the opportunity to explain that result or to request a confirmatory retest of the original sample at the individual’s own expense.

Employers may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee or withdraw an applicant’s offer for employment on the basis of a positive test result from an initial screening test that has not been verified by a confirmatory test. 

Minn. Stat. Ann. § 181.951-.953

Marijuana Alert! Minnesota law expressly prohibits employers from taking an adverse action against an applicant or employee based upon a mere positive marijuana drug test. Employers must demonstrate acute or chronic impairment on the job to take an adverse action. Employers may not discriminate against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis. Employers do not need to permit possession or consumption of cannabis at the worksite.

Minn. Stat. Ann. § 152.32

Montana

Employers may only test applicants and employees who work or will work in hazardous work environments, security positions; or positions involving public safety or public health, driving a motor vehicle for any part of the job duties, or a fiduciary responsibility.

Employers may not test applicants who are subject to collective bargaining agreements that prohibit testing.

Employers may not conduct drug testing on its employees on an arbitrary basis and may only use random testing if:

  • the employer has established a date when all employees will be required to undergo testing; or
  • the employer contracts with a third party to establish and administer a random testing selection process that includes:
    • an established calendar period for testing and an established testing rate within that calendar period;
    • a procedure that will determine who will be tested on any given date during the calendar period for testing;
    •  all supervisors and managers;
    •  the requirement for the employer to obtain a signed statement from each employee that confirms that the employee has received a written description of the random selection process and to maintain the statement in the employee's personnel file; and
    • the selection of employees in a random testing procedure is made by a scientifically valid method, such as a computer-generated table.

Otherwise, employers may only require employees to be tested if an employer:

  • has reason to suspect that an employee's faculties are impaired on the job as a result of the use of a controlled substance or alcohol consumption; or
  • has reason to believe that the employee caused a work-related accident that resulted in death, personal injury, or property damage in excess of $1,500.

Before an employer may take any action based on a positive test result, the employer must have the results certified by a medical review officer and allow the individual to provide the review officer any medical information that is relevant to interpreting test results, including information concerning currently or recently used prescription or nonprescription drugs. The employer must provide an employee who has been tested with a copy of the test report and is required to obtain, at the employee's request, an additional test of the split sample by an independent laboratory selected by the employee, and the employee must be provided the opportunity to rebut or explain the results of any test. 

The employer may not take adverse action, if the employee presents a reasonable explanation or medical opinion indicating that the original test results were not caused by illegal use of controlled substances or because of alcohol consumption. If the employee presents a reasonable explanation or medical opinion, the test results must be removed from the employee's record and destroyed.

Mont. Code Ann. § 39-2-206-210

Marijuana Alert!Employers may not refuse to employ or discriminate against an individual with respect to compensation, promotion, or other terms of employment because they legally use marijuana off the employer's premises during nonworking hours.

Mont. Code Ann. § 39-2-313

Nevada

Marijuana Alert! Nevada law expressly prohibits employers from taking an adverse action against an applicant based upon a mere positive marijuana drug test unless it is for a safety-sensitive position. Nevada law also prohibits employers from discriminating against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

Nev. A.B. 132 § 2; Nev. Stat. § 613.333 & Nev. Stat. § 453A.800 

New Hampshire

Marijuana Alert! Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

N.H. RSA §§ 126-X:1 to 126-X:12 & Paine v. Ride-Away, Inc., 2022 WL 129928 (N.H. Jan. 14, 2022) (holding that N.H. RSA ch. 354 does not exclude the use of medical cannabis as a reasonable accommodation)

New Mexico

Marijuana Alert! New Mexico law prohibits employers from discriminating against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

N.M. Stat. § 26-2B-9

New Jersey

Marijuana Alert! New Jersey law prohibits employers from discriminating against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

N.J. Stat. § 24:6I-6.1

New York

Marijuana Alert! New York law prohibits employers from discriminating against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

NY Pub. Health Law § 3369

New York City: Most employers located in New York City may not conduct pre-employment drug testing for marijuana.

NYC Admin. Code § 8-107(31)

Ohio

Applicants or employees who engage in the use of illegal substances may be afforded some level of protection under Ohio’s employment anti- discrimination law if:

  • the individual has been rehabilitated and is no longer engaging in illegal use of drugs;
  • the individual is participating in a supervised drug rehabilitation program and no longer is engaging in the illegal use of any drug; or
  • the individual is erroneously regarded as engaging in the illegal use drugs but is not engaging in the illegal use of drugs.

Ohio Rev. Code Ann. § 4112.02

Oklahoma

Marijuana Alert! Oklahoma law expressly prohibits employers from taking an adverse action against an applicant or employee based upon a mere positive marijuana drug test.  Employers must demonstrate acute or chronic impairment on the job to take an adverse action.  Employers may not discriminate against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

63 Ok. Stat. § 427.8

Oregon

Applicants or employees who engage in the use of illegal substances may be afforded some level of protection under Oregon’s employment anti-discrimination law if:

  • the individual has been rehabilitated and is no longer engaging in the illegal use of drugs;
  • the individual is participating in a supervised rehabilitation program and is no longer engaging in the illegal use of drugs; or
  • the individual is erroneously regarded as engaging in the illegal use of drugs.

Employers may prohibit the use or possession of drugs at the workplace, except for those prescribed by a licensed health professional.

Or. Rev. Stat. Ann. § 659A.124-127

Pennsylvania

Marijuana Alert! Pennsylvania law implicitly prohibits employers from taking an adverse action against a medical marijuana card holder based upon a mere positive marijuana drug test.  Employers must demonstrate acute or chronic impairment on the job which falls below the standard of care normally accepted for the job before taking an adverse action.  Employers may not discriminate against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

35 P.S. § 10231.2103

Philadelphia, PA: Philadelphia prohibits employers from requiring a prospective employee to submit to pre-employment marijuana testing as a condition of employment. Several exemptions are included such as testing for: (i) police officer or other law enforcement positions, (ii) positions requiring a commercial driver’s license, and (iii) positions requiring the supervision or care of children, medical patients, or disabled/vulnerable individuals. A fourth exemption exists for positions in which the employee could significantly impact the health or safety of other employees or members of the public. This will seemingly require regulation by the Philadelphia Commission on Human Relations to define what constitutes such a position. The ban on pre-employment testing does not apply where (1) employers are required to test for marijuana pursuant to federal or state statute, regulation, or order, (2) drug testing is required by a contract or grant between the employer and the federal government as a condition of receiving such contract/grant, or (3) a valid collective bargaining agreement specifically addresses pre-employment drug testing of applicants Employers are not prohibited from disciplining employees for being under the influence of marijuana while working or for possessing marijuana in the workplace. The ordinance also does not address testing with respect to current employees.

Phila. Code § 9-5500, et seq.

Rhode Island

Employers may only require applicants to submit to drug testing if:

  • each applicant has been given an offer of employment conditioned on the applicant's receiving a negative test result;
  • each applicant provides the test sample in private, outside the presence of any person; and
  • positive tests are confirmed by a federal certified laboratory by means of gas chromatography/mass spectrometry or technology recognized as being at least as scientifically accurate.

Employers may only test employees if an employer reasonably believes, based on specific aspects of an employee's job performance and specific contemporaneous written observations about the employee's appearance, behavior or speech, that the employee may be under the influence of a controlled substance impairing the employee’s ability to perform the job, and:

  • the employee provides the test sample in private, outside the presence of any person; positive tests are confirmed by a federal certified laboratory using gas chromatography /mass spectrometry or technology recognized as being at least as scientifically accurate;
  • the employer provides any employee who tests positive an opportunity to have the sample tested or evaluated by an independent testing facility at the employee’s expense; and
  • the employer provides the test results to the employee with a reasonable opportunity to rebut or explain any positive results.

Employers may not terminate employees for testing positive, but instead must refer them to qualified substance abuse professionals for assistance. Additional testing may be required by the employer in accordance with this referral, and an employee whose testing indicates any continued use of controlled substances despite treatment may be terminated.

*** The impact of the privacy requirement in specimen collection on the ability to collect oral fluid or hair specimens is unknown.  Rhode Island’s law pre-dates the rise in the use of these alternate specimens.  Since oral fluid and hair specimen collection should be done in the presence of a specimen collector, it is possible that the state’s Department of Labor may view the collection of these specimens as a violation of the state’s drug testing law.

28 R.I. Gen. Laws Ann. § 28-6.5-1

Marijuana Alert! Rhode Island law prohibits employers from discriminating against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

R.I. Gen Laws § 21-28.6-4

Texas

Marijuana Alert! Employers may not adopt policies prohibiting employment of individuals for the use or possession of a drug taken under the supervision of a licensed health care professional, including the use of medical marijuana.

Tex. Lab. Code Ann. § 21.120

Vermont

Employers may not request or require that applicants submit to drug tests unless:

  • each applicant has been given an offer of employment conditioned on the applicant receiving a negative test result; and
  • each applicant received written notice of the drug testing procedure and a list of the drugs to be tested. The notice must also state that therapeutic levels of prescribed drugs tested will not be reported.

Employers may not drug test employees unless:

  • such testing is required by federal law;
  • an employer has probable cause to believe an employee is using or is under the influence of a drug on the job; or
  • an employer has a rehabilitation program for alcohol or drug abuse available for the employee or makes a program available via a policy of health insurance or a contract with a nonprofit hospital service corporation.

The employer may not terminate an employee if the employee agrees to participate in and successfully completes a rehabilitation program; however, the employee may be terminated for failing another test after completing the program.

A medical review officer must contact any applicant or employee with a positive test result and explain the results and why they may not be accurate. The officer must also provide the individual with an opportunity to retest a portion of the sample at an independent laboratory at the expense of the person tested and the employer must consider the results of the retest.

Vt. Stat. Ann. tit. 21, § 512-515

Virginia

Marijuana Alert! Virginia law prohibits an employer from discharging, disciplining, or discriminating against an employee for lawful use of cannabis oil based on a valid written certification.

Va. Code Ann. § 40.1-27.4

West Virginia

Employers must provide any tested applicant and employee with an opportunity to voluntarily provide notification of any information which may be considered as relevant to the test, such as currently or recently used prescriptions or nonprescription drugs, or other relevant medical information. This may be accomplished by providing procedures for review by a qualified medical professional to verify a laboratory sample which tests positive in a confirmatory test. If the individual desires to challenge the results of the initial test result, the employer must allow him or her to have the split sample tested by another laboratory at the individual’s expense. 

W. Va. Code Ann. § 21-3E-7

Marijuana Alert! West Virginia law prohibits employers from discriminating against applicants or employees for being medical marijuana card holders.  Should an applicant or employee disclose that they use medical marijuana to treat a disabling condition, employers are advised to engage in a reasonable accommodation analysis.  Employers do not need to permit possession or consumption of cannabis at the worksite.

W. Va. Code Ann. § 16A-15-4