Complete Guide to Pre-Employment Drug Testing Laws
Employment drug testing can help your company promote high standards of safety, comply with regulations, and lower workers compensation’ rates. A drug screening program can also help employers prevent drug use on the job, reduce absenteeism and turnover, and safeguard company assets.
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As with other types of background checks, with employment drug testing, it’s critical for employers to remain in compliance with hiring laws and other important regulations. In this comprehensive guide, we’ll look at applicable federal drug testing laws and pre-employment drug testing laws, as well as:
- Drug testing laws by state
- States without drug testing restrictions
- States that permit drug testing for all employers
- States that allow drug testing for private employers
- States that allow drug testing for state government employers
- State restrictions on marijuana testing
Federal drug testing laws to know
All US employers who conduct pre-employment and employee drug testing are required to follow specific federal laws. Not only do these regulations help promote a safe work environment, they are also designed to help ensure fair chance hiring practices. Here is a closer look at federal drug testing laws employers need to know:
Fair Credit Reporting Act (FCRA)
Summary: Under this law, employers that partner with a trusted consumer reporting agency (CRA) for drug testing must comply with federal FCRA requirements to protect the candidate. Before conducting a drug screening, employers must provide the candidate with proper disclosure of their intent and receive written permission from the candidate. Should an employer decide not to hire a candidate based on the drug test result, they are required by law to follow the adverse action process. See law.
Title VII of the Civil Rights Act of 1964
Summary: This fair hiring law is designed to protect individuals from being discriminated against for their sex, race, religion, color, or national origin. Under this law, it is illegal for employers to single out particular candidates or groups of people for drug testing based on protected classes. See law.
Americans with Disabilities Act of 1990 (ADA)
Summary: The ADA is a fair hiring law that prohibits employers from discriminating against individuals with disabilities. Under this law, it is illegal for companies to discriminate against candidates with a history of substance use, including those recovering from substance use and those currently enrolled in a rehabilitation program.
Prior to making a conditional offer of employment, employers may ask questions about current alcohol or illegal drug use, but may not ask whether the candidate is a drug abuser or alcoholic or whether the candidate has ever participated in a drug or alcohol rehabilitation program. Employers are also prohibited from asking about lawful prescription medications prior to making a conditional offer of employment. Once a conditional offer of employment has been made, the employer may ask questions about past or present drug or alcohol use, as long as the employer does so for all employees in the same job category. The law does not prevent employers from administering drug tests for prospective or current employees, and an employer may lawfully refuse to hire an applicant based on a test result that indicates illegal drug use. See law.
Drug-Free Workplace Act of 1988
Summary: Under this law, federal contractors and grantees are required to implement a drug-free workplace policy if they meet certain criteria such as receiving federal contracts of $100,000 or more and receiving federal grants of any size.
As part of their drug-free workplace policy, employers regulated under the Drug-free Workplace Act must distribute a formal drug-free workplace policy statement, have a drug-free awareness program in place, and discipline employees that are convicted of criminal drug violations. See law.
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Drug testing laws by state
While employers across the US must adhere to federal regulations, state drug testing laws can vary. For example, certain states have drug testing laws that only apply to private or public employers. Additionally, certain occupations have non-negotiable drug testing requirements in states that may not require drug testing in a majority of other industries.
States without drug testing restrictions for job applicants
There are currently 23 states that do not have generally applicable state-specific drug testing laws that restrict job applicant drug testing. Employers should follow federal law, where required, and be mindful of the legality of medical or recreational marijuana use by state.
Disclaimer: Always consult your own counsel for up-to-date legal advice and guidance related to compliance with applicable laws.
| State | Marijuana Legality |
|---|---|
| Arkansas | Medical |
| Colorado | Medical and recreational |
| Illinois | Medical and recreational |
| Indiana | N/A |
| Kentucky | N/A |
| Louisiana* | Medical |
| Massachusetts | Medical and recreational |
| Michigan | Medical and recreational |
| Mississippi | Medical |
| Missouri | Medical |
| Nebraska | N/A |
| New Hampshire | Medical |
| North Carolina** | N/A |
| North Dakota | Medical |
| Ohio | Medical and recreational |
| Oklahoma | Medical |
| Oregon | Medical |
| Pennsylvania | Medical |
| Rhode Island | Medical |
| South Carolina | N/A |
| Texas | N/A |
| Wisconsin | N/A |
| Wyoming | N/A |
**Drug testing is not restricted, but any preliminary screening results must be confirmed via laboratory testing.
States that regulate drug testing for all employers
There are currently 14 states and Washington, DC that regulate job applicant drug testing for all employers; the legal provisions vary by state. Employers should follow federal law, where required, and be mindful of the legality of medical or recreational marijuana use by state.
Disclaimer: Always consult your own counsel for up-to-date legal advice and guidance related to compliance with applicable laws.
| State | Provisions for Job Applicants | Marijuana Legality |
|---|---|---|
| Alabama | Drug testing is permitted after the candidate receives a conditional offer of employment and is provided a copy of a drug testing policy. | N/A |
| Alaska | Drug testing is permitted with notice to the applicant. | Medical and recreational |
| Arizona | Drug testing is permitted by all private employers, plus school districts and organizations that provide school district transportation, as long as the candidate has been informed beforehand.. If the candidate refuses to take a drug test, this can be grounds for not hiring. Testing is mandatory for school bus certification. | Medical and recreational |
| Connecticut | Drug testing is permitted by all private employers as long as the applicant receives written notice in the job application and certain other requirements are met. Testing is mandatory for school bus drivers. | Medical and recreational |
| Hawaii | Drug testing is permitted after the candidate receives a drug testing policy and is provided the chance to disclose any current prescription or non-prescription drugs they are taking. Testing is mandatory for city of Honolulu civil service applicants. | Medical |
| Idaho | Drug testing is permitted pursuant to a written drug testing policy, which must be made available to job applicants. | N/A |
| Iowa | Drug testing is permitted if the candidate is informed at the time of application that a drug test is required. Job ads and applications must show notice of drug testing. Job applicants must also receive a list of the substances to be tested. | N/A |
| Louisiana | Drug testing is not restricted, but in most cases testing must be completed by certified labs. | Medical |
| Maine | Drug testing is permitted after the candidate has received a conditional offer of employment. | Medical and recreational |
| Maryland | Drug testing is allowed, but must comply with certain procedural requirements. | N/A |
| Minnesota | Drug testing is permitted with advance notice if all candidates for that position are tested and the candidate has received a conditional offer of employment. | Medical |
| Mississippi | Drug testing for job applicants is not restricted. | Medical |
| Montana | Drug testing is permitted for candidates as a condition of hire. | Medical and recreational |
| New Jersey | Drug testing is permitted, however a candidate’s marijuana use outside of work cannot affect hiring decisions. | Medical and recreational |
| North Carolina | Drug testing is not restricted, but any preliminary screening results must be confirmed via laboratory testing. | N/A |
| Ohio | Drug testing for job applicants is not restricted. | Medical and recreational |
| Oklahoma | Drug testing for job applicants is not restricted. | Medical |
| Oregon | Drug testing for job applicants is not restricted. | Medical |
| Rhode Island | Drug testing for job applicants is not restricted. | Medical |
| South Carolina | Drug testing for job applicants is not restricted. | N/A |
| Vermont | Drug testing is permitted only if the employer has probable cause to believe the employee is under the influence and if the employer follows additional procedures. | Medical and recreational |
| Washington, DC | Drug testing is generally unregulated for private employers, except for marijuana testing, which may only be conducted after a conditional offer is made (unless otherwise required by law). Public sector employers may test under certain conditions in accordance with an established drug testing policy. | Medical and recreational |
| West Virginia | Drug testing must be conducted within the terms of a written policy that has been made available to prospective employees. An employer may use a confirmed positive test or a refusal to test as a basis for refusal to hire. | Medical |
States that regulate drug testing for private employers
There are currently 2 states that regulate drug testing for all private employers; the legal provisions vary by state. Employers should follow federal law, where required, and be mindful of the legality of medical or recreational marijuana use by state.
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Disclaimer: Always consult your own counsel for up-to-date legal advice and guidance related to compliance with applicable laws.
| State | Provisions for Job Applicants | Marijuana Legality |
|---|---|---|
| Florida | Private employers with 3 or more employees may conduct drug tests after providing advance notice to the applicant. | Medical |
| Washington | Private employers may test job applicants as a condition of employment. Public employers may test job applicants for positions that meet certain requirements in accordance with a written drug testing policy. | Medical and recreational |
States that regulate drug testing for state government employers
There are currently 6 states that regulate drug testing for at least one government agency; the legal provisions vary by state. Employers should follow federal law, where required, and be mindful of the legality of medical or recreational marijuana use by state.
Disclaimer: Always consult your own counsel for up-to-date legal advice and guidance related to compliance with applicable laws.
| State | Provisions for Job Applicants | Marijuana Legality |
|---|---|---|
| California | State agencies are permitted to drug test candidates applying for sensitive roles when the testing is job related. Drug testing is mandatory for public transportation drivers. | Medical and recreational |
| Kansas | State government agencies are permitted to drug test candidates applying for safety-sensitive jobs after an offer of employment has been made. Job listings for these roles must provide notice of a drug test. | N/A |
| Nevada | State agencies are permitted to drug test for roles involving public safety. | Medical and recreational |
| South Dakota | State government agencies are permitted to drug test candidates applying for safety-sensitive jobs after an offer of employment has been made. Both job listings and public announcements for these roles must provide notice of drug testing requirements. | Medical and recreational |
| Tennessee | The state Department of Corrections is permitted to drug test without restrictions. | N/A |
| Utah | No restrictions on applicant testing by private employers. Local governments and state collegesmay test applicants pursuant to a written policyand with advance notice to the applicant. Positiveresults or refusal to test grounds for not hiring. | Medical |
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Restrictions on marijuana testing
Marijuana laws regarding legalization of both medicinal and recreational cannabis are rapidly evolving. It is crucial for employers to continually update their drug testing policy to not only comply with federal and state laws, but also local marijuana testing regulations, which may prohibit drug testing for marijuana.
The following states and cities, where marijuana is now legalized, have laws on the books regarding marijuana use and testing, with more sure to follow:
| State | Provisions |
|---|---|
| Arizona | Employers cannot discriminate against or otherwise penalize a registered medical marijuana patient for having a medical marijuana card or testing positive for marijuana, unless the person used, possessed, or was impaired by the drug while on the job. Exceptions are made if hiring or retaining the person could cause the company to lose monetary or licensing-related benefits. |
| Connecticut | Employers can test for marijuana but cannot refuse employment or otherwise discriminate against qualifying users of medical marijuana on the basis of a positive test result, unless certain conditions are met. Certain positions are exempt. |
| Mississippi | Medical cannabis has been legalized for certain individuals with qualified standards. However, employers can still test for drugs and can deny employment or take adverse action against an individual who tests positive due to medical cannabis. |
| Nevada | Although employers can conduct pre-employment drug tests, they cannot deny employment to a job candidate based on testing positive for marijuana. Certain positions are exempt. |
| New Jersey | A candidate’s marijuana use outside of work cannot affect hiring decisions. However, employers may take action based on reasonable suspicion of impairment on the job. |
| New York City | Employers in New York City cannot make pre-employment marijuana testing a requirement for employment. (Current employees may still be screened for marijuana.) Certain positions are exempt. |
| New York State | Employers in New York cannot test job candidates for marijuana unless it’s required by state or federal law or failing to test would cause the employer to lose federal funding or a federal contract. |
| Philadelphia | Employers are prohibited from requiring pre-employment marijuana testing for employment. (Current employees can still be tested for marijuana.) Certain positions are exempt. |
| South Dakota | Although medical cannabis is now legal for certain users, employers can still implement a drug-free workplace policy. This may include drug testing, if it complies with state and federal law. |
| Virginia | Employers cannot terminate, discipline, or discriminate against an employee who legally uses cannabis oil based on a valid certification from a practitioner for the treatment of a diagnosed condition or disease. Exemptions are made if failing to act would violate federal law or cause the employer to lose a federal contract or funding. |
| Washington, DC | Marijuana testing may only be conducted after a conditional offer is made, unless otherwise required by law. |
Pre-employment drug testing laws
Pre-employment drug testing can help employers make better hiring decisions, promote a safer work environment, and mitigate risk. However, having a clear pre-employment drug testing policy in place is important for companies that plan to screen candidates for the presence or drugs, including controlled substances, prescription drugs, illicit drugs, and alcohol.
Your organization’s drug testing policy should be in writing and shared with all employees, along with information about drug and alcohol abuse. Employers may also want to consider providing education and training to supervisors about the symptoms and signs of drug and alcohol abuse and offer an employee assistance program to help employees who struggle with drug or alcohol abuse.
If your company is thinking about implementing a drug testing policy, be sure to consult with legal counsel to ensure compliance with all applicable federal, state, and local laws.
When do employers drug test new hires?
Pre-employment drug testing generally occurs during the background check process. Employers often present a conditional offer of employment, which is contingent upon the candidate meeting certain stipulations, such as a negative drug test result.
Most employers are not required by law to drug test candidates during the hiring process, but certain types of employers or those within specific industries may be required to drug test new hires subject to any applicable employee drug testing laws. Drug testing of new hires most often occurs in roles related to aerospace and defense, construction, education, government, healthcare, information technology, private security, and transportation.
For example, according to federal regulations under the Drug-Free Workplace Act of 1988 (see above law), certain types of federal contractors and companies that receive federal funds are required to establish a drug-free workplace policy. The US Department of Defense (DOD) also requires contractors with national security clearance to maintain a drug-free workplace program. Under the Omnibus Transportation Employee Testing Act of 1991, the US Department of Transport (DOT) requires pre-employment drug tests for all new DOT-regulated truck drivers, machinery operators, and other transportation workers, plus testing on an ongoing basis.
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Can employers drug test without notice?
In some instances, employers may be able to drug test without notice. However, some state laws regulate or even prohibit drug testing in certain cases so it is important for employers to understand drug testing laws and compliance concerns in their jurisdiction. If allowed by law, employer may choose to conduct drug testing without notice for the following types of situations:
- Post-accident: If any employee is involved in or was the cause of an accident, especially where injuries or fatalities occurred.
- Random: Employers that require regular random testing to ensure a drug-free workplace may test employees randomly, but must always adhere to any applicable discrimination laws before conducting random drug testing.
- Periodic: Employers can schedule regular drug screening throughout the year and typically bundle the screenings with annual physical exams, periodic employee background checks, or when an employee transfers departments or starts a new role.
- Return-to-duty: Following a previous violation, employers may choose to ask the employee to retake tests until they are deemed fit to return back to duty.
- Reasonable suspicion: Subject to (any) applicable laws, employers may request drug screening if an employee shows visible signs of inebriation or early warning signs of substance abuse.
Get an employment drug test with Checkr
Working with a CRA like Checkr for pre-employment background checks, including drug screenings, can help your company promote higher standards of safety, comply with regulations, and lower workers’ compensation rates.
Checkr enables you to customize your background check and drug testing packages to align with your company’s drug policy. Candidates have access to more than 6,100 clinics across the country for quick scheduling, while onsite oral fluid drug testing is also available for even faster results. Both drug testing options show results within your Checkr dashboard for easy review.
Checkr’s scalable solutions, many types of screenings, and AI-powered technology can streamline the background check process with quicker turnaround times, reduced human error and bias, and more accurate reporting. Plus, Checkr’s technology works seamlessly with existing human resources programs, while creating a more positive hiring experience with candidate transparency and accurate ETAs. Talk to sales or get started.
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Disclaimer
The resources provided here are for educational purposes only and do not constitute legal advice. We advise you to consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.
About the author
Sarah writes about small business topics and corporate communications. She has written on a wide range of topics, including background checks, hiring trends, company culture, and employee training and development. Her work includes educational articles, press releases, newsletters, and employee onboarding collateral.