Checklist: Employee drug testing (USA)

Introduction

This checklist will assist in-house counsel, private practice lawyers, and human resource departments to understand when employee drug testing by an employer is required or permitted and what the related laws and rules are. It sets out how to establish or maintain an employee drug testing policy, whether required by law or at the discretion of the employer.

This checklist addresses the following steps:

1. Conduct an initial evaluation of employment law relating to employee drug testing
2. Understand whether the employer is subject to any legal requirements to carry out drug testing
3. Consider the benefits and limitations of implementing employer discretionary drug testing
4. Develop and implement a program and policy regarding employee drug testing

It is presented as a list of steps and suggestions that employers can check off as they are addressed. At the end of the document, there are explanatory notes corresponding with each item in the checklist.

This checklist can be used in conjunction with How-to guides: Overview of US employment law, How to draft an employment contract, How to draft the key provisions of an employee handbook and Quick view: Employment issues relating to cannabis use.

The checklist provides generally applicable guidance. Each employer should check the federal, state, and local laws applicable to their specific circumstances.

Step 1 – Conduct an initial evaluation of employment law relating to employee drug testing

Step 2 – Understand whether the employer is subject to any legal requirements to carry out drug testing

Step 3 – Consider the benefits and limitations of implementing employer discretionary drug testing

Step 4 – Develop and implement a program and policy regarding employee drug testing

General notes

Most private employers have considerable scope to lawfully implement drug testing as they see fit for their organization.

In some cases, employers are required to carry out drug testing of employees due to the industry in which the employer operates or the role undertaken by the employee.

Employers that are subject to certain federal regulations (such as the US Department of Transportation’s (DOT) drug-testing rules for employees in safety-sensitive positions) and federal agencies conducting drug testing must follow standardized procedures established by the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the US Department of Health and Human Services (DHHS).

While private employers are not required to follow the SAMHSA procedures (see SAMHSA Drug-Free Workplace Programs), doing so can help them stay on safe legal ground. Court decisions support following these guidelines and, as a result, many employers choose to follow them.

Legal framework

The legal framework and foundation of employee drug testing is based on federal law and the guidance it provides. See step 1 below for further information. In addition, many states have enacted their own drug testing statutes that may vary greatly from one jurisdiction to another. Review of a pre-employment drug testing law chart is a useful tool in gaining an understanding of the laws related to employee drug testing in any given state (eg, see Clockify: Pre-employment Drug Testing by State Guide for 2024).

The legalization in many states of recreational cannabis use has complicated the framework for employee drug testing. Some states (eg, Washington) and even some local jurisdictions (eg, Philadelphia) have barred employers from pre-employment testing for cannabis or THC, although testing for other drugs is still permitted. Many employers that conduct pre-employment drug testing have voluntarily stopped testing for cannabis or THC, according to a Washington Post article. Note that marijuana and other THC-based products remain unlawful under federal law, and are classified as Schedule I controlled substances (drugs with no currently accepted medical use and a high potential for abuse) (see DEA’s Drug Scheduling information).

Step 1 – Conduct an initial evaluation of employment law relating to employee drug testing

When an employer sets about establishing or maintaining an employee drug testing policy, whether required by law or at the discretion of the employer, the first step is to conduct due diligence with respect to the federal, state, and local laws that may apply to the organization.

1.1 Understand the federal laws relating to employee drug testing

Federal statutes on drug-free workplace policies can be divided into the two broad categories of legislation listed below.

1. Laws designed explicitly to target workplace substance abuse, such as the Drug-free Workplace Act of 1988. These laws legally compel certain types of employers to take action against drug use in the workplace by, for example, developing a written policy.
2. Laws designed to protect the basic civil rights of US workers. These statutes provide special legal protections to certain kinds of employees. They set clear limits on how far an employer can go in investigating and penalizing employee drug use. The most important federal laws and regulations of this type to consider are:

• the Americans with Disabilities Act (ADA) of 1990;

• the Civil Rights Act of 1964;

• the Family and Medical Leave Act (FMLA) of 1993; and

• the National Labor Relations Act (NLRA) of 1935.

The best way for employers to avoid getting drawn into litigation over employee drug testing is to make sure that policies are implemented fairly and consistently, and do not conflict with any federal, state, or local civil rights or workers’ rights laws.

1.1.1 Workplace substance abuse laws

There is no general requirement that private employers have a drug-free workplace policy of any kind. The exceptions to this general rule are federal contractors and grantees (see SAMHSA employer resources: Federal Contractors and Grantees), as well as safety- and security-sensitive industries and positions (see SAMHSA employer resources: Considerations for Safety and Security-sensitive Industries).

1.1.2 Civil rights laws relating to employees

There are federal laws that are designed to protect the civil rights of employees by setting limits on employers when establishing drug testing policies, and when investigating and imposing penalties for suspected or confirmed employee substance abuse.

The Americans with Disabilities Act (ADA) of 1990

Among the federal laws, the ADA is perhaps the most important federal civil rights legislation for employers when developing and implementing drug-free workplace policies. It prohibits all US employers with more than 15 employees from discriminating against qualified job applicants and employees because of a physical disability. The ADA does not prohibit employers from having a drug-free workplace policy, nor does it provide any special protection to individuals who are currently using illegal drugs. It does, however, make it illegal for employers to discriminate against recovering alcoholics and drug users who have already sought treatment for their substance abuse issues.

Under the terms of the ADA employers cannot fire, refuse to hire, or refuse to promote someone simply because they have a history of substance use. Additionally, employers cannot fire, refuse to hire, or refuse to promote employees because they are enrolled in a drug or alcohol rehabilitation program.

Because many of the physical symptoms that are commonly associated with intoxication (eg, slurred speech, disorientation, or lack of coordination) can also be the result of a serious physical disability or medical condition, such as diabetes or low blood sugar, employers should be cautious not to single out employees for testing simply because they look or act as though they are under the influence of drugs or alcohol. Individuals with these conditions are protected under the provisions of the ADA. Singling them out for testing or disciplinary action could result in allegations of discrimination against the employer.

Employers should refrain from asking employees about their legal prescription drug use as part of the pre-hiring or pre-promotion drug testing process. While the case law in this area is still evolving, some state courts have ruled that requesting such information constitutes a form of discrimination and is in violation of the ADA.

The Civil Rights Act of 1964

The Civil Rights Act of 1964 prohibits private employers with 15 or more employees from discriminating against individuals on the basis of race, sex, religion, or nationality, and employers implementing a drug-free workplace policy need to keep in mind Title VII of the Act. Although challenges to drug testing or drug-free workplace policies under this legislation are relatively rare, employers need to be sure that their programs treat all workers equally and do not single out any particular racial, ethnic, or gender group for testing or disciplinary action.

On April 23, 2025, Executive Order 14281 (Restoring Equality of Opportunity and Meritocracy) eliminated disparate impact liability from federal employment policy. This change affects drug testing programs by allowing employers to implement uniform, neutral testing policies without concern for statistical disparities among protected groups. Under this order, drug testing procedures that unintentionally affect certain demographics are no longer actionable under Title VII, unless intentional discrimination can be proven.

On March 19, 2025, the Equal Employment Opportunity Commission and the Department of Justice issued joint guidance cautioning that diversity, equity, and inclusion (DEI) policies must not result in employment decisions based on race, sex, or other protected traits. In the context of drug testing, this means employers must avoid using DEI objectives to justify different testing standards or exemptions for specific demographic groups. Even well-intentioned efforts to promote inclusion could violate Title VII of the Civil Rights Act of 1964 if they result in unequal treatment in drug testing procedures.

The Family and Medical Leave Act (FMLA) of 1993

The Family and Medical Leave Act (FMLA) applies to all public agencies and to private employers with more than 50 employees. Under the FMLA, these employers must allow employees who have worked for the employer for at least one year and who have worked at least 1,250 hours in the past 12 months to take up to 12 weeks of unpaid, job-protected leave because of their own serious health condition or to care for a spouse, child, or parent who has a serious health condition.

Eligible employees may use their FMLA leave to deal with substance use disorders and related problems. The FMLA also prohibits employers from retaliating against workers who request FMLA leave. For example, an employer cannot demote, fire, or refuse promotion to an employee simply because that employee takes 12 weeks off for treatment of a substance use disorder. Employers also are prohibited from taking any action against workers who request time off to care for family members who are suffering from addiction. However, employers may still take disciplinary action if they have a clearly communicated, non-discriminatory policy that allows termination for substance abuse even if the employee is on FMLA leave, as long as the action is not based on the leave itself.

The National Labor Relations Act (NRLA) of 1935

An additional concern for employers implementing drug-free workplace policies in unionized workplaces are the requirements of the National Labor Relations Act (NRLA). Passed in 1935, this law provides a legal framework for all negotiations between employers and unions (on behalf of employees). Under the NRLA, any drug-testing program affecting unionized workers must be negotiated and agreed on with the union through a formal collective bargaining process. Even when an employer is required to implement a drug-testing program by another federal mandate, such as the Omnibus Transportation Employee Testing Act of 1991, the employer must negotiate with the union to determine exactly when testing will be conducted and what penalties should apply to workers who test positive for drug or alcohol use.

1.2 Understand the variability in state laws relating to employee drug testing

States and US territories have their own laws and regulations mandating when and how workplace drug testing should be conducted. In addition, some states and territories have laws that require state and local contractors to develop drug-free workplace policies, similar to the policy requirements for federal contractors.

Therefore, there is no single set of rules and regulations that applies throughout the United States. For example, some states may allow drug testing in virtually every type of business and in both the public and private sectors. Conversely, other states have restrictions on whom the employer can test, how they can be tested, and what kinds of rehabilitation and disciplinary action can result from a positive test.

As a result, an employer must perform adequate due diligence to ensure they conform with all federal laws and, in addition, the laws of any state or local authorities in which the business operates.

It is also important to check for legal updates and new laws governing drug testing as the legal environment around drug usage continues to evolve, especially with respect to cannabis. For example, effective January 1, 2024, employers in Washington state are prohibited from rejecting an applicant based on off-the-clock cannabis use. RCW section 49.22.240.

1.3 Be aware of the circumstances when mandated testing applies

There are various circumstances where employee drug testing is mandatory. Some of these are listed below:

• Federal agencies and businesses with government contracts, grants, or funds must develop a drug-testing policy that adheres to the Federal Drug-Free Workplace Act of 1988 and follows the federal SAMHSA guidelines.

• Any company involved in the transportation industry (eg, aviation, mass transit, trucking, pipelines, or railroads) falls under the DOT’s Title 49 rules. These rules outline the required procedures an organization must follow when drug-testing employees. After an employer receives a positive test result for an employee, verified by a medical review officer, the employer must immediately remove the employee from jobs that could involve safety issues.

• DOT’s Title 49 also requires testing after accidents meeting specific criteria (fatality, injury with treatment away from scene, or disabling damage with citation).

• The Omnibus Transportation Employee Testing Act of 1991 mandated drug and alcohol testing for safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries. This Act led to the creation of the DOT's Title 49 rules.

• Department of Defense (DOD) contractors must follow DOD regulations for employee drug-testing.

• The Nuclear Regulatory Commission’s fitness-for-duty programs require nuclear facilities to ensure that employees are not under the influence of any substance, legal or illegal, that may impair their ability to perform their duties (10 CFR part 26).

Organizations and agencies that meet these criteria must have a policy in place that outlines what employees can expect from the employer if they fail their drug test.

1.4 Understand the reasons for employer discretionary testing

Generally, although not a part of any federal or state mandate, employers may require job applicants and employees to submit to drug testing either during the hiring process or after being hired.

There are several reasons why an employer may make testing a part of the employment policy. Drug testing may be used in the following circumstances:

• pre-employment;
• as part of an annual physical;
• for-cause and reasonable suspicion testing;
• post workplace accident (to determine whether alcohol or other drug use was a contributing factor to the incident);
• post substance abuse treatment; and
• random tests.

Drug testing is a prevention and deterrent method that is often part of a comprehensive drug-free workplace program. Workplace drug-testing programs should comply with applicable federal, state, and local laws. As drug testing laws vary from state to state, employers must be diligent in efforts to ensure compliance with applicable state laws.

1.5 Understand public policy relating to privacy and employee drug testing

At the core of the public policy and ethical concerns relating to employee drug testing is how to weigh individual freedom and privacy rights against the needs of society. The potential to undermine the presumption of innocence of the employees must be balanced against the obligation of employers to ensure the well-being and protection of other employees. A further issue is whether the employer’s goal should be deterrence and punishment or rehabilitation and treatment. The ethical issues related to the possible goals of drug testing programs include ensuring the safety of others, ensuring the safety of individuals who use drugs, deterring potential drug users, and preserving the integrity of businesses.

Step 2 – Understand whether the employer is subject to any legal requirements to carry out drug testing

Employers should identify whether they are subject to any legal requirements to carry out employee drug testing.

2.1 Establish whether the organization is public or private

Private sector employees work primarily for businesses or non-profit agencies. Public sector employers hire employees to fulfil official functions and perform public services, such as law enforcement, public education, and public safety. Because public sector employers are government agencies, the constitution grants public employees certain rights that their private sector counterparts do not enjoy.

2.2 Identify any requirements arising out of the roles and job functions of public employees

2.2.1 Federal workers

Federal drug-free workplace programs are comprehensive programs to address illicit drug use by federal employees. SAMHSA operates the Federal Drug-free Workplace Program. The program certifies executive branch agencies’ Drug-Free Workplace Plans and identifies safety-sensitive positions that must be subject to random drug testing.

The most important piece of legislation regulating federal contractors and grantees is the Drug-free Workplace Act of 1988. Under the Act, a drug-free workplace policy is required for:

• any organization that receives a federal contract of $350,000 or more; and
• any organization receiving a federal grant of any size.

This is a potential trap for the unwary. A federal grant of any size, including some of the assistance programs that arose out of the COVID-19 pandemic, brings an employer under this umbrella. The drug-free workplace policy must remain in place for the duration of the contract or the grant. Failure to comply could lead to suspension or termination of grants or contracts and being prohibited from applying for future government funding.

2.2.2 State government employees

Public service jobs are more likely to involve pre-employment drug screening than those in the private sector because the majority of facilities operating as federal, state, and local government agencies are designated as ‘drug-free workplaces,’ with employees possibly subject to testing requirements. However, not all government jobs require a drug test. Generally speaking, all safety-sensitive positions will require drug screening while the requirements for other kinds of jobs vary from agency to agency and state to state.

2.3 Identify any requirements arising out of the roles and functions of private employees

Employees of private organizations may also be caught by mandatory drug testing requirements. The employees who will be subject to such requirements are those in certain positions or types of work, as outlined below.

2.3.1 Transportation workers

Private employers in transportation industries are subject to drug and alcohol testing, pursuant to the Omnibus Transportation Employee Testing Act of 1991.

An employer is required to test employees if their business is regulated by one of the following federal agencies or organizations:

• Federal Aviation Administration (FAA);

• Federal Motor Carrier Safety Administration (FMCSA);

• Federal Railroad Administration (FRA);

• Federal Transit Administration (FTA);

• National Highway Traffic Safety Administration (NHTSA);

• Pipeline and Hazardous Materials Safety Administration (PHMSA); or

• US Coast Guard.

Employers are required to test safety-sensitive employees before the employee begins employment and whenever there is ‘reasonable cause or suspicion’ that an employee has been involved in the use of, or is under the influence of, drugs or alcohol at work. Tests are also required immediately after an employee is involved in an accident and before allowing an employee to return to duty following a testing violation. Employers are also required to have a program of random drug testing in place.

All employees, whether in safety-sensitive positions or not, must receive drug and alcohol awareness training and education, and all supervisors must receive at least two hours of training in substance use detection, documentation, and intervention. Half of this training time should be devoted to drug use, and the other half to alcohol use.

2.3.2 Hazardous conditions and materials workers

Pipeline and hazardous materials workers are subject to special regulations, including 49 CFR Part 199 (PHMSA Regulation). The specific rules related to drug and alcohol testing of this special class of employees can be found in Chapter I of Part 199.

Step 3 – Consider the benefits and limitations of implementing employer discretionary drug testing

Many employers consider it in their interests to establish a program for carrying out employee drug testing, even when this is not legally required. Alcohol and drug abuse in the workplace can create significant safety and health hazards as well as decreased productivity and poor employee morale. For an employer, it can also lead to additional costs in the form of health care claims, especially workers’ compensation and short-term disability claims.

Employers can lawfully implement drug testing programs and policies even when not legally required to do so, provided the employer follows all federal, state, and local laws.

Before establishing a drug testing program, employers should consider the issues set out at 3.1 to 3.2 below, which are subject to any state or local laws that may apply.

3.1 Consider implementing a drug-free workplace program

Drug testing that is not part of legally mandated testing, but instead is part of a prevention and deterrent policy, can be part of a comprehensive drug-free workplace program. Drug testing is often part of a comprehensive program to eliminate the abuse of illegal drugs in the workplace. Any workplace drug-testing program, federal or non-federal, should comply with applicable local, state, and federal laws. Employers seeking to implement a drug-free workplace program should follow the guidance provided by SAMHSA.

3.2 Consider the circumstances when drug testing will be carried out and whether it is permitted

3.2.1 Pre-employment drug testing

Making a pre-employment drug test a condition of employment is generally permitted subject to state pre-check requirements and restrictions. For example, some states require pre-testing notice to applicants and others do not allow recreational cannabis use on personal time to be a disqualifying factor.

When carrying out pre-employment drug testing, all job candidates should receive drug testing prior to being hired. If fewer than all employees are to be tested, the decision on which employees to test should not be based on race, gender, national origin, religion, or any other type of protected class.

3.2.2 Drug testing during routine physical examinations

Drug and alcohol testing that is part of annual physical tests is permitted, provided employees are informed that drug testing will be part of the exam.

3.2.3 Random drug testing

Random tests are allowed provided the testing is done on a non-targeted, random selection process.

3.2.4 Drug testing based on reasonable suspicion

For-cause and reasonable suspicion testing when employees appear to show discernible signs of being unfit for duty (for-cause testing), or who have a documented pattern of unsafe work behavior (reasonable suspicion testing) is allowed. States such as Florida, Mississippi, and Ohio such procedures.

3.2.5 Drug testing subsequent to the referral of an employee to chemical dependency treatment

Post-treatment tests are permitted when employees return to work after completing a rehabilitation program.

Step 4 – Develop and implement a program and policy regarding employee drug testing

Once an employer has identified any legally required drug testing provisions and the aims and parameters of any employer discretionary testing program, the next step is to develop and implement a program and policy relating to drug testing. The employer should ensure that a drug testing policy is in place which is non-discriminatory and that all practices and policies of the program are in compliance with any federal, state, or local laws.

Employers who follow the basic steps set out below, and who strive to create programs that are fair, consistent, and supported by all stakeholders, will set a foundation for carrying out lawful employee drug testing.

4.1 Ensure that there are reliability safeguards for employee drug testing

Every employee drug-testing program should balance the needs of the employer and the rights of the employees and follow the guidelines established by SAMHSA.

The SAMHSA guidelines identify the five substances that federal drug-testing programs look for. The guidelines also require the use of drug labs certified by SAMHSA to analyze specimens and provide test results. Every effort should be made to ensure the accuracy of employee drug testing. Additionally, because drug-testing information is sensitive and confidential the employer should follow the procedures below to safeguard employee privacy:

• collect samples in a private and unobtrusive manner;
• strictly limit access to drug-testing results to those who need the information to make safety and personnel decisions;
• maintain drug-testing information, including test results, in files separate from the employee’s personnel files; and
• discuss positive test results and consequences with the employee in private.

Drug testing information may be regarded as sensitive personal information, subject to security measures. See How-to guide: Determine and apply the relevant US privacy laws to your organization (USA).

4.2 Establish a process for laboratory-conducted drug testing

Any employer implementing a drug testing policy should utilize a reputable laboratory to conduct the testing. SAMHSA provides a Certified Laboratory List to assist employers in identifying laboratories that meet certain established standards.

4.3 Put in place medical review officers

The SAMHSA guidelines include having a medical review officer (MRO) evaluate tests. An MRO is a licensed physician, certified by the American Association of Medical Review Officers or the Medical Review Officer Certification Council. The MRO is responsible for receiving and reviewing laboratory results generated by an employer’s drug testing program, evaluating medical explanations for certain drug test results, and must follow strict federal regulations when reviewing federal test results. The MRO is a licensed, specially-trained physician or osteopath. They must not be an employee or agent of, or have any financial interest in, an HHS-certified laboratory or initial testing facility for which the MRO is reviewing drug test results. The MRO must not derive any financial benefit by having an agency use a specific test facility or have any agreement with a laboratory or initial testing facility that may be construed as a potential conflict of interest.

4.4 Prepare a drug testing policy

An employer’s drug testing policy should be in writing to eliminate potential confusion and issues regarding interpretation and application of the policy. SAMHSA also recommends that an employer’s policy includes the following:

• a statement of purpose that contains the organization’s goals for the workplace policy, the organization’s definition of ‘substance use,’ and a description of how the policy was developed;
• goals of the policy;
• definitions, expectations, and prohibitions, to include how the organization defines substance use, what employee behaviors are expected, what substances and behaviors are prohibited, who is covered by the policy, and when and where the policy will apply;
• dissemination strategies, setting out how the organization will educate employees about the policy;
• benefits and assurances to help employees comply with the policy, find help for drug-related problems, and to help ensure that all aspects of the policy are implemented fairly and consistently for all employees, and to protect employees’ confidentiality; and
• the consequences of violating the policy, and the procedures for determining whether an employee has violated the policy. The policy should also outline the procedures for appealing a determination that an employee may have violated the policy.

See SAMHSA employer resources: Develop a Policy.

4.5 Ensure allowances are made for medicinal drug use

Because marijuana is currently classified as an illegal Schedule I drug under the federal Controlled Substances Act, many employers feel that they have sufficient grounds for firing or refusing to hire people who test positive for cannabis regardless of any state laws allowing medical or recreational use of cannabis.

A number of court rulings have followed this reasoning. For instance, one Colorado case determined that an employer was within its rights to fire an employee who tested positive for cannabis even though the employee held a valid medical marijuana card from that state. The Colorado Supreme Court affirmed that holding, saying that there was no ‘state law exception’ that made medical marijuana use lawful in spite of the federal law prohibiting it, see Coats v Dish Network, LLC, 2015 CO 44, 350 P. 3d 849. In an effort to try and protect such employees, some states have passed laws that prohibit the firing of employees who fail drug screenings but who have been prescribed marijuana to treat their disabilities or medical conditions. However, federal law still overrules state law on this matter.

Further, employers should refrain from asking employees about their legal prescription drug use as part of the pre-hiring or pre-promotion drug testing process as requesting such information constitutes a form of discrimination and is in violation of the ADA.

4.6 Provide training to human resources and supervisors who will monitor and enforce the policy

Personnel who are in charge of monitoring and enforcing the policy should be trained in what the policy provides, how it operates, and the procedures set out in the policy. SAMHSA provides free online training on drug-free workplace programs designed for supervisory personnel.

4.7 Comply with any state-based requirements of notice and signage of the company’s drug-free workplace policy

Employees should be given notice of the employer’s drug testing policy. One method of notice is to provide signage about the policy within the workplace. The requirements of any policy will vary from state to state (see, eg, Texas and Florida).

4.8 Document employee performance and the reasons for testing any employee, the results of the tests, and any penalties imposed for violating the policy

If a program mandates testing for specified reasons (e.g., a workplace accident), then whenever an employee is tested the grounds for that testing should be documented and kept in the employee’s personnel file. If there are any disciplinary consequences for a positive test result or a refusal to be tested, document those consequences as well.

4.9 Ensure consistency in the administration of the drug testing policy and procedures

Drug testing should not be carried out on random employees, even if the testing may be conducted at random intervals. All employees subject to testing requirements should be tested. Consistency will help avoid charges of unfair treatment or workplace discrimination.

4.10 Keep up to date on changes in laws and regulations regarding drugs, alcohol, and employee drug testing

The drug testing policy of the employer should be reviewed on a regular basis to ensure that it remains in compliance with federal, state, and local laws. In addition, any supervisory-level employees that have responsibility for the administration of the policy should undergo regular training.

Additional Resources

SAMHSA, Drug Testing Resources
National Research Council (US) and Institute of Medicine (US) Committee on Drug Use in the Workplace; Normand J, Lempert RO, O'Brien CP, editors. Washington (DC): National Academies Press (US); 1994 
Chapter 7 Impact of Drug-Testing Programs on Productivity.
National Burau of Economic Research, Employee Drug Testing is Effective

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