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
- 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
- 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
- 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