Delaware Drug Testing Laws 2024

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Delaware Drug Testing Laws 2024

Delaware currently has no state laws regulating drug testing for employees, leaving most of the rules of procedure to the discretion of the employers. Even then, there are laws in place to enforce drug testing for employers in certain sensitive industries. For example, Del. Code Ann. Tit. 21 § 2708 mandates drug tests for school bus drivers, while 21 DE Reg. 503 mandates drug tests for public work contractors. These laws allow employers to test employees in such positions for drugs. They also make provisions for punishment if such employees fail drug tests for marijuana, even if the cannabis use was off duty. However, Protected individuals like registered qualifying patients enjoy protection when they fail marijuana drug tests as long as the marijuana intake does not impair their performance at the workplace.

What Kinds of Drug Tests Can Employers Conduct in Delaware?

There is no specific list of drugs that employers can or cannot test for in Delaware. However, employers can generally test for marijuana, meth, cocaine, phencyclidine, amphetamines, opiates, and other controlled and illegal substances in the state. With respect to marijuana, many employers usually test for THC metabolites, and there is no restriction on the types of specimens that may be tested. The following types of drug tests are generally conducted by employers in Delaware:

  • Random Test: Employees are selected through a fair and non-discriminatory process to be drug tested randomly and without prior notice
  • Reasonable Suspicion Test: This test is conducted for an employee who is reasonably suspected to be under the influence of drugs in the workplace
  • Pre-Employment Test: This test is usually conducted on applicants who have received job offers prior to their resumption at work
  • Post-Accident Test: This test is conducted after the occurrence of workplace accidents to determine whether or not intoxication was the cause of the incident

Although employers are not restricted from testing for marijuana, the Delaware Medical Marijuana Act prohibits employers from discriminating against registered medical marijuana patients in the state.

Can Employers Do Random Drug Testing in Delaware?

Delaware does not allow or prevent employers from conducting random drug tests, leaving the decision to the discretion of employers. State laws, however, specifically require the following employees to submit themselves to random drug testing:

  • Contractor or subcontractor employees working on large public work projects
  • Employees of the department of services for children, youth, and their families
  • School bus drivers

Employees under these job roles do not need to be notified before their employers can conduct random drug tests on them.

What Happens if You Fail a Drug Test in Delaware for a Job?

Failing a drug test in Delaware may open an employee to disciplinary actions, including suspension, loss of employment benefits, and termination of employment. However, an employee who is a registered marijuana patient and has tested positive for marijuana may be excluded from disciplinary actions. This protection subsists unless the employee was impaired by marijuana at the workplace.

Can I Be Fired for Refusing a Drug Test in Delaware?

Yes. Employers in Delaware can decide to treat employees who refuse a drug test as though they have failed the test and subject them to disciplinary measures. Since there are no state laws expressly regulating drug testing for employees in Delaware, a lot is left to the discretion of the employer. However, employers must also note that employees have the right to privacy and non-discrimination in the workplace. If an employee is aggrieved by the termination of employment and feels that the refusal to take a drug test is justified, such employee can consult a lawyer to seek remedy through the court.

Can You Get Fired for Failing a Drug Test with a Medical Card in Delaware?

Delaware laws protect registered medical marijuana patients from disciplinary measures if they test positive for marijuana after a workplace drug test. This protection, however, does not apply if the employee was impaired by marijuana at the workplace.

Can Employers Conduct Drug Tests on Applicants in Delaware?

Employers are free to decide whether or not they want to conduct drug tests on applicants in Delaware. Since there is no law expressly regulating drug testing for employees, the kind of test to be conducted also largely depends on the employer. General practice, however, suggests that prospective employees should be informed beforehand of the possibility of a drug test for job applicants.

Is Pre-Employment Drug Testing Allowed in Delaware?

Conducting a pre-employment drug test for new employees in Delaware is at the discretion of the employer. However, should an employer decide to conduct pre-employment drug testing, it is advisable to inform the prospective employees beforehand of such a requirement.

Does Delaware Allow Public Agencies to Submit Employees to Workplace Drug Tests?

There are no drug testing laws that apply to a general category of employees in Delaware. Whether or not a public agency can submit its employees to drug tests depends on the laws regulating the specific agency. For example, Del. Code Ann. Tit. 29 § 8922 requires employees in security-sensitive positions in the Department of Correction to submit to drug testing. Employees of other public agencies in Delaware may not have such requirements.

Can Employers Choose to Create Drug-Free Workplace Policies?

Delaware state laws do not prohibit employers from creating drug-free workplace policies. This gives employers the liberty to conduct drug tests. However, should an employer decide to have a drug-free workplace policy, such an employer may put in place the following in line with the standards applicable to employers of labor working in Delaware work sites as set out by the Delaware Department of Insurance:

  • A statement of purpose concerning the protection of employees and guests
  • A general statement concerning what conduct is prohibited
  • A statement concerning the employer’s intent to comply with applicable federal and Delaware statutes and regulations
  • A description of the employer’s drug testing policy, if any, including but not limited to pre-employment testing, reasonable suspicion testing, and post-incident testing
  • A list of workplace-prohibited substances
  • Whether marijuana is a prohibited substance in the workplace
  • A statement concerning the employer’s policy that accounts for the use of prescription medications, including the employee’s duty to notify any testing laboratory of such substances
  • A listing of all employee drug testing procedures (if testing will occur), including the following:
  • Whether the employer uses an independent laboratory
  • Whether testing includes (or is limited to) urine testing
  • The employee’s right to refuse testing and the consequences for so doing
  • Whether an employee will be compensated for time spent testing, whether the employer pays for the cost of the test
  • A statement concerning the consequences of testing positive for drugs, both during a pre-employment drug screening and for current employees, including whether the job applicant or current employee has a right to explain the positive drug test
  • A statement of confidentiality of information
  • A method for ensuring and documenting that an applicant for employment and all current employees receive details of the employer’s Drug-Free Program

Employees Exempted From Delaware Workplace Drug Testing Laws

Delaware has no comprehensive laws requiring or prohibiting employers to/from establishing drug testing programs. However, federal employees in the state are subject to federal regulations on workplace drug testing laws.

What are the Requirements for Drug Testing Labs in Delaware?

Delaware does not require the use of certified laboratories to conduct drug tests. So, employers can either contract a drug testing lab to test their employees/applicants or conduct the tests on-site by trained drug test administrators. Laboratories approved to conduct drug tests in Delaware must be certified by the Substance Abuse and Mental Health Services Administration (SAMHSA) or approved by the College of American Pathologists (CAP).

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