State & Federal Law: Drug Testing

A.  CONNECTICUT LAW ON DRUG TESTING

1. Drug Testing of Prospective Employees

Under Connecticut law, no employer may require a prospective employee to submit to a urinalysis drug test as part of the application procedure unless the following conditions are met:

• The applicant is informed in writing at the time of application of the employer’s intent to conduct such a drug test;
• The test is conducted in accordance with the statutory procedures, which mandate the methodology for such tests; and
• The applicant is given a copy of any positive drug test result.

The statute further provides that the results of any such test must be kept confidential and not disclosed by the employer or its employees to any person other than any such employee to whom such disclosure is necessary. Drug test results should be treated the same as employee medical records, kept separately from personnel records.

It is a good idea to have the applicant sign a consent form for the drug testing which also authorizes the laboratory to release the results to the employer. For a sample consent form, click here.

Note that individuals who were previously employed by the employer and who are applying for re-employment within twelve months of their termination are treated like current employees for purposes of drug testing, rather than as prospective employees. They cannot be tested unless the requirement of reasonable suspicion is met, or unless they are covered by another law that requires testing.

In addition, beginning on July 1, 2022, parts of Connecticut’s recreational marijuana law take effect. As of that date, additional limitations apply to drug testing of job applicants, when the test yields a positive result for only THC (the active ingredient in marijuana).

An employer may only use such a positive result as the basis for a refusal to hire, if one of the following applies: (1) hiring the employee would violate a federal contract or jeopardize federal funding; or (2) the employer had given a conditional job offer, and had established a written policy that stipulated that a positive THC result may result in loss of the offer.

2. Drug Testing of Current Employees—Reasonable Suspicion

Connecticut law prohibits drug testing of current employees unless the employer has “reasonable suspicion” that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee’s job performance.

The law expressly states that the Department of Labor shall adopt regulations to specify circumstances that shall be presumed to give rise to reasonable suspicion. Although regulations have been drafted, they have not yet been finalized.

Similar to the provisions pertaining to job applicants, Connecticut’s recreational marijuana law also includes limitations on the drug testing of current employees.

Beginning July 1, 2022, when a drug test yields a positive result for only THC, an employer may not use that drug test as the sole reason for discipline, unless one of the following applies: (1) failing to discipline the employee would violate a federal contract or jeopardize federal funding; (2) the employer reasonably suspects the employee’s use of marijuana while engaged in work; (3) the employee shows specific symptoms of drug impairment while at work which impacted his performance; or (4) the test was given pursuant to a random drug testing policy consistent with the information below, in section 3.

3. Drug Testing of Current Employees Random Tests

An employer generally may not require employees to submit to a drug test on a random basis unless one of the following exceptions applies:

• Such test is authorized under federal law (discussed below);
• The employee serves in an occupation which has been designated as high-risk or safety-sensitive; or
• The test is conducted as part of an employee assistance program sponsored or authorized by the employer in which the employee voluntarily participates.

 High-risk or safety-sensitive occupations: High-risk or safety-sensitive occupations are defined by regulation as those that: (1) inherently involve a significant life-threatening danger to the employee, fellow employees, or the general public; (2) require the use of judgment or a high degree of care or caution; and (3) are such that the employer could not evaluate the employee’s performance by personal observation.

Employees and employers may make written requests to the labor commissioner that an occupation be designated (or not be designated) as high-risk or safety-sensitive.

Employers who intend to institute drug testing of current employees and who are not acting under reasonable suspicion or federal mandate must first submit a request to the commissioner for certification that the occupation is high-risk or safety-sensitive. The commissioner maintains a list of occupations designated as high-risk or safety-sensitive; however, this list is only a guideline for future determinations.

An employer cannot rely on the fact that an occupation is on the list to justify implementing a random testing program. Rather, each employer who intends to undertake random drug testing must inform the commissioner of its intention so that the commissioner can make a separate certification for that employer.

The request to have an occupation designated as high-risk or safety-sensitive must be made in writing, and should explain how the occupation meets each of the above criteria. The request should be sent to:

Director, Wage & Workplace Standards
Connecticut Department of Labor
200 Folly Brook Blvd.
Wethersfield, CT 06109

 4. Testing Procedures and Notice Requirements

Connecticut law imposes restrictions on the procedures and methodology for drug testing. First, the Connecticut drug testing law authorizes urinalysis drug testing. It does not address other types of tests (such as hair analysis, breath alcohol tests, or blood tests). The Connecticut Department of Labor has taken the position (in letter opinions) that such testing is not regulated by any statutes or regulations within its jurisdiction. In other words, an employer is not precluded from using alternative tests, but does so at its own risk.

Second, the Connecticut law provides that no employer may determine an employee’s eligibility for promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action solely on the basis of a positive urinalysis drug test result unless:

• The employer has given the employee a urinalysis drug test, utilizing a reliable methodology, which produced a positive result and
• Such positive result was confirmed by a second urinalysis drug test, which was separate and independent from the initial test, utilizing a gas chromatography and mass spectrometry methodology or a methodology determined by the Department of Health to be equally or more reliable.

Reputable commercial labs are aware of the requirements and generally will split the sample and run an appropriate confirming test if necessary.

The law further provides that no employer, employer representative, agent or designee engaged in a urinalysis drug testing program shall directly observe an applicant or employee in the process of producing their urine specimen.

Connecticut’s law does not preclude an employer from conducting medical screenings, with the written consent of its employees, to monitor exposure to toxic or other unhealthy substances in the workplace. Further, it does not restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or to discipline an employee for being under the influence of intoxicating substances during work hours.

B.  FEDERAL LAWS ON DRUG TESTING AND DRUG ABUSE PREVENTION

In addition to the Connecticut drug testing law, there are federal laws on drug testing and drug abuse prevention that may affect Connecticut employers who are engaged in certain industries or who contract with the federal government.

Federally mandated testing programs generally require testing for five classes of drugs: marijuana, cocaine, amphetamines, opiates, and phencyclidine (PCP), although there are some exceptions (for example, the DOT regulations also require alcohol testing).

Urine is the authorized specimen except for alcohol testing, where breath or saliva may be used. A two-step testing procedure is required, utilizing a screening test and a confirmation test.

Further, only laboratories certified by the U.S. Department of Health and Human Services may be used to test specimens for federally mandated testing. Specimens testing positive on both tests must undergo a “medical review” by a licensed physician, who is commonly referred to as a “medical review officer” or “MRO.”

1. Department of Transportation

For employers involved in inter-state or intra-state transportation, the U.S. Department of Transportation (DOT) regulations require that transportation workers in safety-sensitive jobs be subject to various types of drug testing (pre-employment, random, reasonable cause, periodic, and post-accident).

The DOT rules are implemented by the various agencies with oversight for the particular form of transportation involved.

These include: the Federal Aviation Administration (air transport); the Federal Highway Administration (commercial motor transport); the Federal Railroad Administration (railroads); the Federal Transit Administration (mass transit); the Research and Special Programs Administration (pipelines); and the U.S. Coast Guard (maritime/commercial vessels).

2. Federal Drug Testing Laws for Other Industries

In addition to transportation, there are federal laws and regulations concerning drug testing for certain other industries and agencies. These include the nuclear industry, the defense industry, the Department of Energy, and NASA.

3. The Drug-Free Workplace Act and Federal Contractors

The federal Drug-Free Workplace Act of 1988 applies to all federal grant recipients and businesses having government contracts worth more than $25,000. The Act neither requires nor prohibits drug testing of employees. However, it does require covered entities to:

• Make a good-faith effort to maintain a drug-free workplace;
• Develop and publish a written anti-drug policy and ensure that employees read and consent to the policy as a condition of employment;
• Establish an ongoing drug-free awareness program to inform employees about the dangers of drug abuse, the policy of maintaining a drug-free workplace, the penalties for violations of the policy, and any available counseling, rehabilitation, and employee assistance programs; and
• Require employees to report (in writing) any conviction for a drug offense in the workplace. Within 30 days of being so informed, employers must take appropriate personnel action (up to and including termination), or require participation in a drug abuse assistance or rehabilitation program.

The Act further requires each covered entity to certify that it will provide a drug-free workplace by complying with the above measures.

4. The Americans with Disabilities Act

The Americans with Disabilities Act covers all employers with 15 or more employees. The ADA prohibits employers from discriminating against qualified individuals with disabilities. Recovering alcoholics and drug users are protected from discrimination under the ADA, as are those who are erroneously perceived as being illegal drug users. Current alcoholics are protected as long as they are not drinking or intoxicated on the job; however, they may be held to the same employment standards as other employees even if the unsatisfactory performance is related to their alcoholism.

Under the ADA, an employer is required to provide a qualified disabled person reasonable accommodation to enable the person to perform the essential functions of the job. In some circumstances, this may include providing for a leave of absence so that the employee can receive necessary treatment.

Current users of illegal drugs, or individuals who are drinking at the work site, are not protected under the ADA.

In addition, although the ADA prohibits pre-offer medical inquiries, testing for illegal drugs is not considered a medical examination or inquiry under the ADA. Evaluation of positive test results by a physician, however, may constitute a medical inquiry. For this reason, as well as cost reasons, an employer may want to consider conducting drug testing only after a conditional offer of employment has been made.

5. The Occupational Safety and Health Act

The Occupational Safety and Health Act is a comprehensive statute that governs workplace health and safety. The OSH Act does not specifically address drug and alcohol testing nor does it have any standards concerning such testing in the workplace.

The Act does, however, have a “general duty clause” intended to cover hazardous situations for which there are no specific OSHA standards. This clause requires every employer to furnish its employees with employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious harm.

C.  ALCOHOL

As noted, Connecticut law addresses only urinalysis testing, which may not be particularly effective for detecting alcohol abuse or intoxication.

While an employer is not precluded under Connecticut law from using other types of tests (such as a breathalyzer test) to detect alcohol intoxication, there is no “safe harbor” or guidance on methodology provided by state law.

Further, as discussed above, alcoholism is a protected disability under the ADA, and an alcoholic is protected unless the use of alcohol interferes with the individual’s ability to do the job.

Employers therefore need to be careful in testing for alcohol use, and may instead want to focus on addressing the performance problems that result.
Note, however, that the federal DOT regulations for regulated industries (airlines, railroads, mass transit, trucking, etc.) require alcohol testing in addition to testing for certain classes of illegal drugs.

D. DRUG TESTING AND UNIONS

The National Labor Relations Board has established that drug and alcohol testing of current employees is a mandatory subject of bargaining under the Labor Management Relations Act.

Therefore, if an employer’s workforce is unionized, the employer generally must bargain with the union before introducing a testing program covering current employees.

However, the Board has determined that testing of applicants (as opposed to current employees) is not a mandatory subject of bargaining because applicants are not employees within the meaning of the LMRA. Employers covered by the Railway Labor Act also must bargain with the union when instituting a drug testing program.

The point at which the duty arises depends on the nature of the collective bargaining agreement and whether the drug testing policy is considered to create a major or minor dispute within the meaning of the Railway Labor Act.

E. POTENTIAL LIABILITY

Under Connecticut’s drug testing law, any employer or laboratory that violates any provision of the law shall be liable to the affected person for special and general damages, together with attorneys’ fees and costs. Further, a court can order injunctive relief.

Thus far, the Connecticut courts have declined to find a common law cause of action for wrongful discharge, noting that the statutory remedy is available. However, an employer could be subject to other common law claims such as defamation, intentional or negligent infliction of emotional distress, and invasion of privacy.

An employer who applies a drug testing program on a discriminatory basis (such as requiring only members of certain protected classes to submit to tests) could face liability under state and federal anti-discrimination laws, such as the Connecticut Fair Employment Practices Act and Title VII of the Civil Rights Act.

In addition, the Americans with Disabilities Act provides protections for former drug users who have been successfully rehabilitated and no longer illegally use drugs, as well as those who are erroneously regarded as engaging in illegal drug use.

Also, an employer subject to the Drug-Free Workplace Act can face penalties for failure to comply with the Act. Such penalties can include grant suspension, termination or debarment of the contractor or grantee.

Finally, employers should note that, as of July 1, 2022, applicants and employees who allege they were wrongfully fired or not hired as a result of a positive THC result on a drug test, may file suit in state court.  Successful litigants may be awarded reinstatement, back pay, and attorneys’ fees.