Many companies struggle to understand state and federal drug testing requirements. There is no comprehensive federal law that regulates drug testing in private industry. However, federal law provides for specific agencies to adopt drug testing regulations for employers under their jurisdiction. For example, if you fall under the Department of Transportation (DOT) requirements, you are required 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. In addition, the Federal Motor Carrier Safety Administration’s (FMCSA’s) regulations prohibit drivers of commercial motor vehicles (CMVs) from using any Schedule I substance while on duty. Marijuana and related derivatives are currently classified as Schedule I substances, which are thus prohibited regardless of a prescription or state decriminalization.  

Since there is no comprehensive federal drug-testing law, contractors are subject to state regulations. Many states have enacted provisions imposing drug-testing restrictions of various kinds making it even more important to read and understand your state’s laws. 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.  

Generally, testing is presumed to be lawful unless there is a specific restriction in state or federal law. However, the body of law one 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.  

 Managing Marijuana Laws  

With marijuana laws constantly changing, companies are struggling to understand their impact on the construction industry. It’s important to review your state’s employment law regarding drug testing and to develop a comprehensive substance abuse program. Over a dozen states allow the use of medical marijuana and protect employees and/or job applicants from discrimination in some form. These protections don't apply to employers complying with federal regulations, such as contractors, or as required to obtain federal funding.  

Six states — Nevada, New York, New Jersey, Connecticut, Montana and Rhode Island — have passed laws protecting the employment rights of recreational marijuana users. In addition, the following cities have recently enacted ordinances protecting the employment rights of marijuana users, either for city employees or for all workers in their cities:  

• Atlanta, GA
• New York City, NY
• Philadelphia, PA
• Washington, DC
• Isle, MN
• Kansas City, MO
• St. Louis, MO
• Baltimore, MD
• Rochester, NY
• Richmond, VA

 Many states that provide employment protections for cannabis users have exceptions for workers in safety-sensitive roles. It’s important if your business operates within one or more of these states to identify safety-sensitive positions within your organization. By identifying these safety-sensitive positions, the employment protections for cannabis may not apply depending on your state laws.  

What Is a Safety-Sensitive Position?

Each state’s definition may alter slightly but all have similar language. The U.S. Supreme Court defined "safety-sensitive" as referring to positions where drug use might endanger the integrity of national borders or people's lives. A good example of safety-sensitive positions within the construction industry would include crane or heavy equipment operators. When developing drug-testing policies and evaluating employees’ job tasks for safety-sensitive positions, employers should commit time and resources to perform a comprehensive evaluation of specific tasks involved in all jobs that may be safety-sensitive and perform an objective analysis.