With the constant changes in marijuana legalization from state to state, employers must always be on the ball with their substance use policies. But what about drug testing for federal contractors and their employees?
Employment drug testing has traditionally been a means to keep teams safe and productive and reduce liability. However, companies now have to ensure their practices and policies comply with federal, state, and local laws. Even as a federal contractor, you can’t simply administer drug tests at will.
So, what are a federal contractor’s responsibilities when it comes to drug testing? We explain this touchy area below.
What is the Drug-Free Workplace Act?
When discussing drug testing for federal contractors, we first must look at the Drug-Free Workplace Act of 1988 (DFWA). The DWFA requires that all federal contractors and grantees take steps to ensure a drug-free workplace.
Specifically, the act mandates that any organization that receives a federal grant or contract must establish a drug-free workplace policy and program, which includes several key responsibilities.
What should a drug-free workplace policy include?
First, employers must develop and distribute a drug-free workplace policy to all employees. This policy should clearly state the:
- Prohibited manufacture, use, and distribution of controlled substances in the workplace
- Consequences for violating this policy
- Type of drug tests that will be conducted
- Frequency of testing
- Applicable procedures for challenging test results
- Continued employment is conditional upon employee compliance
And of course, document this policy in your employee handbook and update it annually to ensure you remain compliant!
Visit the Substance Abuse and Mental Health Services Administration (SAMHSA) for the minimum drug-free policy requirements.
What does the DFWA say about drug testing?
The DFWA pertains to possession and use in the workplace but does not require federal contractors to conduct employee drug testing. It also does not prohibit you from hiring someone who uses illegal drugs outside of work.
The DFWA does provide some guidance for federal contractors who choose to implement a drug testing program. Specifically, the act requires that the drug testing program:
- Use reliable and accurate drug testing methods—urine and oral fluid are the only testing types currently permitted!
- Use certified labs accredited by SAMHSA
- Conduct drug testing consistently across all employees and positions
- Provide employees with notice of the drug testing policy
- Offer employees an opportunity to explain or dispute the results of a positive drug test
- Protect the confidentiality of drug test results
- Provide employees with information and resources, including the effects of drugs on job performance and access to drug counseling and rehabilitation services
It is important to note that the Drug-Free Workplace Act does not provide specific guidance on the types of drugs that should be tested for, the frequency of drug testing, or the consequences of a positive drug test. These issues are generally left up to the discretion of individual federal contractors.
Are federal contractors required to test employees for cannabis?
There is no federal law that requires all government contractors to test their employees for cannabis or any other drug. However, some may be required to test their employees for drug use as a condition of their federal contract.
For example, companies that work on federal contracts that involve safety-sensitive positions or national security positions may be required to conduct drug testing as a condition of their contract. Those subject to regulations from federal agencies such as the Department of Transportation or the Nuclear Regulatory Commission may also be required to conduct drug testing, including for marijuana.
How can federal contractors conduct legal drug testing?
To ensure legal drug testing of their employees, federal contractors must comply with all applicable federal and state laws. This includes complying with the Drug-Free Workplace Act, the Americans with Disabilities Act (ADA), and any state laws that regulate drug testing.
Some states require employers to follow certain procedures when conducting drug tests, such as obtaining written consent from employees or ensuring that drug testing is conducted by a licensed laboratory.
In states where marijuana is legal, federal contractors must take extra care to ensure that their drug testing policies comply with state law. Some states have laws that prohibit employers from discriminating against employees who use marijuana for medical purposes if they have a valid prescription. Others allow employers to take disciplinary action against employees who test positive for marijuana use.
Always consult your legal counsel to ensure your drug testing policies and procedures comply with all applicable state and federal laws.
What should federal contractors do if an employee tests positive for marijuana?
Let’s look at a scenario: John is an employee of a federal contractor that has a drug testing policy in place. As part of the policy, John is required to undergo periodic drug testing. During a routine drug test, John tests positive for marijuana use. John’s job duties do not involve safety-sensitive activities, but the contractor has a zero-tolerance policy for drug use.
Does the employer have to terminate John immediately? Not necessarily!
First, the federal contractor should review its drug testing policy to determine what actions are required or allowed. If the policy provides for disciplinary action in the event of a positive drug test result, the contractor may be required to take disciplinary action against John. This procedure may include:
- Notifying John of the test results and allowing him to explain or dispute the results
- Provide him with information about counseling and rehabilitation services that are available
- Termination of employment (if it will not expose the company to legal risks)
However, if John is located in a state that has legalized marijuana use, the contractor should also review applicable state laws to determine if there are any protections for employees who use marijuana for medical purposes or if recreational use is also legal.
For example, New York’s Compassionate Care Act protects employees with medical marijuana prescriptions and views them as having a disability under the New York State Human Rights Law.
Next Steps for Federal Contractors
If you’re a federal contractor unsure of how to proceed after an employee tests positive for marijuana use, first discuss the matter with your legal counsel. Your attorney can help determine what actions are required or allowed under applicable state and federal laws. They will also help develop a plan for addressing the situation in a manner that is legally compliant and consistent with the contractor’s policies and procedures.
And if you need guidance developing a compliant drug-free workplace and testing policy, contact BlueLion at 603-818-4131 or info@bluelionllc.com today! Our outsourced HR consultants have extensive experience navigating these delicate areas and helping employers protect their businesses AND employees.
The information on this website, including its newsletters, is not, nor is it intended to be legal advice. You should contact an attorney or HR specialist for advice on your individual situation.
