State-by-State Workplace Drug Testing Laws

There is no comprehensive federal law that regulates drug testing in the private sector. The

Drug-Free Workplace Act does impose certain employee education requirements on companies that

do business with the government, but it does not require testing, nor does it restrict testing in any

way. Drug testing is allowed under the Americans with Disabilities Act (ADA) because the ADA

does not consider drug abuse a disability—but the law does not regulate or prohibit testing. Instead

of a comprehensive regulatory system, federal law provides for specific agencies to adopt drug

testing regulations for employers under their jurisdiction.

The Department of Defense requires defense contractors to set up procedures for identifying

drug users, including random testing. The Department of Transportation requires the industries it

regulates to conduct random drug and alcohol testing for workers in safety sensitive jobs, as well as

testing after accidents and when there is "reasonable suspicion" of employee substance abuse. The

federal Omnibus Transportation Employee Testing Act (OTETA) requires tests for all operators of

aircraft, railroad equipment, mass transportation vehicles, and commercial motor vehicles.

Since there is no comprehensive federal drug-testing law, this leaves the field open to state

regulation, and many states have enacted provisions imposing drug-testing restrictions of various

kinds. Some limit testing to "reasonable suspicion" or "probable cause" situations. Some explicitly

authorize random testing under certain circumstances. Some impose restrictions on public sector

employers but not on private companies. Many prescribe specific methods for the handling of

specimens and the use of test results. Only states that have drug-testing laws are listed in this

table.

As a general rule, testing is presumed to be lawful unless there is a specific restriction in state

or federal law. However, the body of law on employee privacy and related issues continues to

evolve, and any testing program that is not explicitly authorized by law should be considered open

to legal challenge. Of equal importance is the controversial character of employee drug testing in

labor-management relations and the potential for legal challenges from this quarter.