If an employer or a prospective employer in Montana has asked you to take a drug test, you’ll want to know your legal rights. Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit drug tests. For the most part, this area is regulated by state and local laws.
Montana allows employers to drug test certain employees, if they follow the state’s rules and procedures. However, the drug testing law applies only to employees (including managers and supervisors) and applicants who work or will work in:
- a hazardous work environment
- a security position
- a position that affects public safety or health
- a position involving a fiduciary obligation to the employer, or
- a position that requires driving.
Drug Testing for Montana Applicants
Employers may require applicants to take drug tests as a condition of employment.
Drug Testing for Montana Employees
An employer may require an employee to take a drug test:
- on reasonable suspicion that the employee is impaired
- after the employee is involved in an accident that causes personal injury or more than $1,500 in property damage, or
- as a follow-up to a previous positive test.
An employer may also conduct random testing, either by establishing a date when all employees will be tested or by contracting with a third party to create and administer a test program that includes:
- an established calendar period when testing will take place
- an established rate of testing within the period
- a random selection process
- the participation of all managerial employees in the pool to be tested, and
- a signed statement from each employee confirming receipt of a written description of the testing process.
If an employee tests positive, the employer may require the employee to undergo treatment as a condition of continued employment. An employer can’t take any adverse action against an employee who tests positive (including requiring the employee to undergo follow-up testing) if the employee presents an explanation or medical opinion indicating that the positive result was not caused by illegal drug use. In this situation, the results must be removed from the employee’s record and destroyed.
An employer who wants to drug test must have a written policy in place, available for employees to review, 60 days before the employer begins testing. Any changes to the policy also require 60 days’ notice.
Legal Claims Arising From Drug Testing
Even though Montana law allows employers to drug test in some circumstances, employees and applicants may have legal claims based on how the test was conducted, who was tested, or how the results were used. Here are some examples:
- Violation of state laws and procedures. Although an employer has the legal right to test, it must follow the state’s requirements. For example, a Montana employee might have a legal claim if the employer’s selection process for random testing didn’t include all managers or was biased to include or exclude certain employees.
- Disability discrimination. An applicant or employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant's medication was legally prescribed for a disability, the company could be liable.
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender – for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that is allowed or required to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes that the employee tested positive, the test result was false, and the employer knew or had reason to know of the error.