No one-size-fits-all approach to drug testing some employees but not others

Q         Our organization has four separate entities with their own distinct handbooks. Is it advisable to create a drug testing policy for one entity, but not the others? Does the work environment make a difference (e.g., a safety-sensitive jobsite versus an office setting)?

A   Unfortunately, there isn't a one-size-fits-all answer to your question because drug testing is a state-specific issue. No comprehensive federal law regulates drug testing of employees in the private sector. To be sure, some federal agencies require drug testing of private sector employees, such as the Department of Transportation (DOT). Outside of those specific agency rules, drug testing is regulated by state law. As such, it's important your drug testing policy complies with the requirements of the state in which the drug testing will take place.

To determine whether you can have a drug testing policy for one entity but not the others, you need to analyze whether testing is mandatory. Generally speaking, there's no mandatory testing unless your employees fall under the regulation of a federal agency—such as DOT—or a similar state law requiring drug testing. If mandatory testing is required, then you would need a drug testing policy for each entity. If not, it might still be advisable to have a drug testing policy for each entity. Drug testing policies, like all employment policies, should apply equally to all employees in a job classification. So, if you have the same category of employees in multiple entities, it would be advisable to treat them the same when it comes to drug testing.