What is the difference between open, voluntary and mandatory state laws around drug testing?

Federally regulated industries such as transportation and aviation must comply with federal regulations around drug testing. Private employers outside of these specific industries are generally not required to have a drug-free workplace drug and alcohol policy.

Employers who are not required by law to undertake workplace drug and alcohol testing may still choose to do so in the interest of the associated workplace health and safety benefits [Find out more in "Everything employers need to know about workplace drug testing"]. Although these companies do not need to follow federal regulations around drug testing, they do still need to comply with federal laws around workers' rights.

Outside of federally regulated industries, employers can choose from a range of drug testing options including pre-employment testing, random testing, reasonable suspicion testing, and post-accident testing [Find out more in "State drug testing Laws: What should employers know?"].

State regulations govern these types of tests and it's essential that employers understand and comply with applicable state laws. All states allow drug testing but their laws can vary significantly. Companies with offices in more than one state must adhere to the requirements applicable to each different state. Different regulations can apply to different types of drug and alcohol tests, even within the same state.

State laws can fall into one of three categories when it comes to drug testing regulations: open, voluntary or mandatory.

Open states generally do not have any specific guidelines or requirements for workplace drug and alcohol testing. This means that employers in these states can choose any type of testing they feel would be appropriate, and they can also choose not to test at all if they don't want to.

Voluntary states offer incentives for testing as a way to encourage employers to participate. Examples include discounts on compensation premiums for workers. If an employer chooses to participate in their state's drug testing program, they must follow the established guidelines. Voluntary state laws can also include consequences for positive screening results, such as the withholding of worker's compensation.

As the word "voluntary" indicates, employers are not required to participate with incentive testing set up by the state. If they choose not to participate, they can carry out another type of drug and alcohol testing program of their choice.

Mandatory states set specific guidelines and requirements for drug and alcohol testing, which workplaces must adhere to. Incentives are not provided in mandatory states, but workplaces who don't comply will meet consequences such as fines or lawsuits.