State Approaches to Workplace Drug & Alcohol Testing

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  • 0:03 Drug Screening
  • 1:31 State-to-State Differences
  • 2:27 Restricted vs.…
  • 3:17 Pre- vs.…
  • 3:54 After Testing Positive
  • 5:05 Lesson Summary
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Lesson Transcript
Instructor: Scott Tuning

Scott has been a faculty member in higher education for over 10 years. He holds an MBA in Management, an MA in counseling, and an M.Div. in Academic Biblical Studies.

Because federal law doesn't offer substantial guidance on the issue, pre-employment and employee drug screening are regulated by individual states. There are profound differences among the states, and employer rights and responsibilities vary dramatically depending on jurisdiction.

Drug Screening

A few years ago, quadriplegic and Colorado resident Brandon Coats sued his former employer, Dish Network, alleging wrongful termination. Coats claimed that his medicinal use of marijuana caused him to fail a random drug screen administered by the employer. His employer received the positive results and subsequently terminated him.

The Coats case was a seminal moment in which the zero-tolerance drug-free workplace clashed head on with the trend of easing marijuana laws. In its appeal to the Colorado Supreme Court, Dish Network successfully argued that its drug-free workplace policy had nothing to do with whether a drug was legal or illegal, but rather that the policy represented a safety measure to ensure that employees and customers wouldn't be harmed because of negligence on the part of the employer.

In an unusually unified ruling, the court voted unanimously that DISH Network had the right to conduct drug screening per its internal policy, and that it also retained the right to terminate employees testing positive for substances that might impair their ability to work or put others at risk.

The case demonstrated the profound murkiness of many laws regarding employer drug screening. With the exception of laws prohibiting the use of drug tests as a means of retaliation or discrimination, federal law is largely silent on the issue. The lack of strong federal guidelines results in profoundly different employer drug screening laws from state to state.

State-to-State Differences

One of the most noticeable contrasts in drug screening laws is the degree of control that a state exercises over the drug screening process. On one end of the spectrum are states like Colorado that place virtually no restrictions on employers' use of drug screening except to prohibit it from being used as a tool to harass, intimidate, or retaliate.

Other states, like California, place much stricter controls on the process. In California and states with similar laws, employers must meet a greater burden to link the specific elements of a job description to the need for drug screening. The law in California uses the ''sensitivity'' test. This means that state law restricts the use of employee drug screening to roles in which the individual's duties are ''safety sensitive'' in terms of safety. Employers in these states retain some latitude in making a determination about which jobs or roles fit the definition of ''safety sensitive.''

Restricted vs. Universal Applicability

Another key distinction that affects employer-mandated drug testing is whether the laws are applicable to both public and private employers or if they apply only to public employers. In Iowa, all drug testing laws are applicable to all employers. Iowa places controls on the method for random and for cause drug testing and requires both private and public employers to afford employees who fail a drug screen an opportunity to receive treatment in certain circumstances.

In Kansas, employees enjoy many of the same protections as they would be afforded in Iowa, but the laws apply only to state employees holding safety sensitive jobs. Private employers in Kansas have a great deal of latitude and must comply only with laws that prohibit the use of drug testing as a means of discrimination, retaliation, or harassment.

Pre- vs. Post-Employment Testing

Some drug screening laws make a significant distinction between pre-employment screening and testing after employment has commenced. In Nebraska, there are no restrictions on employer-mandated pre-employment screening, but there are limited protections once employment has commenced.

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