2026 has been a year that would make any HR leaders head spin.
With ever changing federal, state, and local employment laws, it is more important than ever to be up to date on the current trends and changes within the industry.
Today we’ll be discussing a prevalent testing method in the HR space, drug and alcohol testing.
During this piece we’ll discuss the efficacy of said programs and the effects these programs can have on talent attraction.
First and foremost from a federal legal perspective the golden standard is the Omnibus Transportation Employee Testing Act of 1991. This act required drug and alcohol testing for all safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries.
Since the passing of that act, “The proportion of American Management Association member companies that utilized workplace drug testing grew overall from 21% in 1987 to 62% in 2004, despite a 19% decline since the mid 1990s (Frone, 2013). By 2004, nearly half the US workforce (48.8%) reported that their workplace utilised some form of drug testing (Larson et al., 2007).”
“According to HireRight’s 2013 Employment Screening Benchmarking Report, 78 percent of respondents overall conduct drug testing on some portion of their workforce.”
In the complex United States legal world, one drug in particular creates a legal maze that multistate employers will struggle to adapt to. The drug in particular is marijuna.
In April 2026 a big change occurred federally as well, state regulated medical marjuana products and FDA-approved marijuana products were reclassified by the Department of Justice from Schedule I to Schedule III.
Today nearly half of the states and DC allow people to use marijuana for both medical and recreational reasons.
Additionally 88% of U.S. adults say that marijuana should be legal for medical and/or recreational use.
Given this change in the societal norms and laws surrounding marijuana, its prevalence in drug testing will remain an open question in the years to come.
For example if a company had employees in states that had medical marijuana and recreational marijuana legalized should it then be treated as alcohol testing which is typically only done post accident or post incident?
The efficacy of the different drug tests also raises legal liability for the organizations that use them.
In particular drug testing via hair samples has been shown to lead to false positives.
In 2014 a panel of federal judges determined that this hair testing method had a discriminatory impact on African Americans.
Depending on the type of test there is a higher possibility of false positives. This can create distrust in the process, the organization, and the individual.
When thinking through the creation or implementation of a drug or alcohol testing policy it’s important to ask as few questions.
- Have there been incidents related to drugs and alcohol that have affected your business?
- Are there safety concerns or an increase in workplace accidents?
- Are my employees working with vulnerable populations?
- Are my employees in safety sensitive roles?
- If the policy is implemented is it for pre employment, post incident, or random?
- What are the repercussions if someone tests positive?
With these questions asked you can start to get to the bottom of if a drug and alcohol policy is right for your organization.
Looking at your industry counterparts can be a helpful tool for comparison purposes.
In unionized organizations there are even further hoops needed to jump through when considering implementing a drug and alcohol policy.
“The General Counsel of National Labor Relations Board issued the following ruling in 1987, as Memorandum GC87-5, “Guideline Memorandum Concerning Drug or Alcohol Testing of Employees,” which says in part:
“In brief it is my position that:
- drug testing for current employees and job applicants is a mandatory subject of bargaining under Section 8(d) of the Act;
- in general, implementation of a drug testing program is a substantial change in working conditions, even where physical examinations previously have been given, and even if established work rules preclude the use or possession of drugs in the plant;
- the established Board policy that a union’s waiver of its bargaining rights must be clear and unmistakable is to be applied to drug testing”
Additionally in a job market where candidates move fast, implementing a pre employment drug or alcohol screening could have a serious ripple effect within your organization.
The implementation could cause fewer applicants to apply, it can delay onboarding of the new team members due to the waiting period for results. Finally, it may cause current team members to be less inclined to refer applicants to the organization in the future.
When creating a drug and alcohol testing policy it is always recommended that you consult with a business and employment lawyer. The laws around testing, especially pre employment testing, are ever changing on a local, state, and federal level and it’s important that your organization does not open itself up to any liability when implementing the policy.
Never create the policy in a silo. All levels of the organization should be able to weigh in on the creation of the policy. This will help with buy in and adoption of the policy as everyone will have felt heard during the process.
Overall approach the creation or implementation of a drug or alcohol testing program with the utmost care and caution. In today’s litigious world you do not want to open your organization up to further legal liability.
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