When considering whether to implement a drug and alcohol testing program, employers should be aware that, for most employers, testing is not required or regulated under the federal Drug-Free Workplace Act of 1988. The Drug-Free Workplace Act applies only to federal contractors and grantees. For more details, see Requirements for Federal Contractors and Grantees in this section. The majority of employers are, however, subject to state and local statutes that limit or prohibit workplace testing. These employers may still test employees for a wide variety of substances, but only if the employers follow the state or local rules. Please see the state Alcohol and Drugs section.
Federal preemption. In the event that a federal law does govern workplace testing, at least one federal court has held that it preempts state law. A federal trial court in Minnesota has held that the state drug-testing statute, which prohibits discharging an employee the first time the employee fails a drug test, is preempted by federal law and the Federal Aviation Administration’s drug-testing regulations (MN Airlines v. Levander (Dist. Minn. Aug. 28, 2015)).
Employers not covered under the Drug-Free Workplace Act (or a state law mandating such a program) have more freedoms when creating drug-free workplace programs. There is no one "right" way to implement a drug-free workplace. An employer's program should be designed to meet the particular needs of its workplace. Some of the issues to consider when drafting a workplace plan are listed below.
Employee education. An employee education program will be most effective if it does not sound like a "top down" mandate from management. ...