Montana Drug Testing Laws 2024

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Montana Drug Testing Laws 2024

The state's laws regarding workplace drug testing are outlined in Sections 39-2-205 and 39-2-211 of the Montana Code Annotated. These sections are collectively known as the Montana Workforce Drug and Alcohol Testing Act. Generally, drug testing is mandated for employees in dangerous work environments in the state, but employers in non-hazardous industries are not prohibited from creating policies for workplace drug testing. Per state law, employers with workplace drug testing programs must conduct testing in compliance with their adopted policies. Such policies must also be in tandem with Montana's Workforce Drug and Alcohol Testing Act.

While Montana has legalized cannabis for medical and recreational purposes, per Mont Code Ann Section 16-12-108(5), employers are not required to allow the consumption or possession of marijuana in the workplace. Also, employers are not prohibited from taking disciplinary actions against employees for violating workplace policies or for working while impaired by cannabis. However, no employer may discriminate against or punish an employee for the use or possession of lawful products, including cannabis, off the employer's premises while off-duty. Nevertheless, this does not apply to the use of marijuana that affects an employee's ability to perform their employment duties or the safety of other employees in the workplace.

The Montana Drug and Alcohol Testing Act was enacted in 1997 and first amended in 2011. Over the years, there have been updates to the state's drug testing laws with the legalization of medical and recreational marijuana. In January 2022, Montana passed House Bill 701 to amend the state's lawful off-work conduct statute to include cannabis as a legal product. This prohibits employers from punishing employees because of their legal use of cannabis off-duty.

What Kinds of Drug Tests Can Employers Conduct in Montana?

Montana Employers can test for various illegal substances, including marijuana, heroin, amphetamine, phencyclidine (PCP), cocaine, and barbiturates. Generally, different drugs require different tests, and testing must be done in line with an employer's written policies and procedures on workplace drug testing. For instance, using employees' urine or saliva, employers may test for marijuana using the following types of drug tests per Mont Code Ann Section 39-2-208:

• Random Drug Test - This involves selecting a number of employees at random for drug testing without notifying them
• Job Applicant Drug Test - This is often conducted as a condition for hiring prospective employees
• Follow-up Drug Test - This is conducted on employees who have had verified positive tests for drugs and may be done for up to 1 year from the time an employee is first required to submit to it
• Post-accident Drug Test - This test is conducted if an employer has a reason to believe that an employee's action is directly or proximately responsible for a work-related accident leading to personal injury, death, or property damage exceeding $1,500
• Reasonable Suspicion Drug Test - This test is required and often conducted if an employer has reason to suspect that an employee is impaired on the job by marijuana or other illicit drugs

Can Employers Do Random Drug Testing in Montana?

Yes, Section 39-2-208(2) of the Montana Code Annotated 2023 allows employers with workplace drug testing policies to conduct random drug tests on employees. The selection method for random drug testing in the state must be a scientifically valid process, like a computer-based random number generator table or a random number table. To be able to conduct workplace random drug tests in Montana, an employer's drug test policy should include at least one of the following procedures:

• The employer may manage or contract the services of a third party to establish and administer a random drug testing process that must include the following:
• A procedure requiring the employer to obtain employees' signed statements confirming that they (employees) have received written descriptions of the employer's random selection process
• All managers and supervisors in the random selection and testing process
• A specified testing calendar period and a set testing rate within the calendar period
• A random selection process to determine which employees will be tested on any given date within the established testing calendar period
• An employer or their representative may specify a date when all wage-earning or salaried employees will be requested to undergo drug tests

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

Employers can impose appropriate sanctions on employees who fail drug tests in Montana in line with their workplace drug testing policies. Any employee who fails a drug test for illicit drugs, including marijuana, may be required to participate in a drug rehabilitation, counseling, or treatment program. Often, employers require employees' participation in these programs as a condition of continued employment after failing workplace-mandated drug tests. However, employers must have medical review officers (MROs) trained in the field of substance abuse review and certify test results before taking any action based on positive drug test results. Also, an employee with a positive drug test result must be allowed to inform the MRO of any medical information relevant to interpreting their drug test result. These may include information about recently used drugs, prescribed or otherwise.

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

Yes. In Montana, refusing a workplace drug test is a good cause for employment termination, especially if the employer has a right to request that its employees submit to drug tests. HB 701 and HB 56 address discharges from the workplace due to employees' violation of employers' workplace drug policies. According to these laws, an employee must be disqualified from benefits after being fired for violating an employer's drug policy by refusing to take a drug test that complies with federal drug testing laws. However, marijuana use is excluded from both laws.

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

In Montana, the off-duty use of medical marijuana by employees who are medical marijuana cardholders is protected by state laws. Per Mont Code Ann Section 39-2-313, an employer may not discriminate against any employee because of their legal use of marijuana off the employer's premises during non-working hours. An employer will not fire an employee with a medical marijuana card based on a positive test result for marijuana, provided cannabis use does not affect their ability to perform work-related duties. This also applies to job applicants. Except as provided in Section 16-12-108 of the Montana Code Annotated, Section 39-2-210 prohibits employers from taking adverse actions against employees with reasonable explanations or medical proof that their drug test results were not caused by illegal use of marijuana.

Can Employers Conduct Drug Tests on Applicants in Montana?

Yes. The Montana Workforce Drug and Alcohol Testing Act permits employers with workplace drug policies to drug test job applicants as a condition of offering them employment. While employers are not required to accommodate the use of medical cannabis in the workplace, no Montana law permits an employer to refuse to employ a job candidate based on a positive drug test result caused by medical cannabis. Other than medical cannabis, employers may refuse to hire an applicant based on confirmed positive drug test results.

Is Pre-Employment Drug Testing Allowed in Montana?

Although the state allows drug testing job applicants for illicit drugs before hiring them, there are no known Montana pre-employment drug testing laws. Job applicant drug tests in the state are typically conducted as a condition for hire and are always done at the interview stage, not after job offers.

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

Yes, public agencies in Montana can require their employees to submit to drug tests as long as they have well-defined workplace drug policies. For example, Montana State University maintains a Drug, Alcohol, and Tobacco Free Workplace Policy to ensure a drug-free environment and promote the productivity and safety of its employees, visitors, and students. Several other government agencies in the state also have drug-free workplace policies.

Can Employers Choose to Create Drug-Free Workplace Policies?

Montana employers are not required or mandated to have workplace drug policies. However, any employer in the state that wishes to maintain a drug-free workplace must establish a workplace drug policy. An employer's drug-free workplace policy must be available for review by all employees at least 60 days before it is implemented. Such a policy should, at a minimum, should meet certain requirements and include the following:

• The employer's standards of conduct that regulate employees' illicit drug use
• A description of the procedures that will be followed to conduct drug testing
• A description of the types of drugs that the employer may test
• A description of the applicable legal penalties under local, state, or federal law for the illegal use or possession of drugs in the workplace
• The employer's hiring policy regarding prospective employees who fail drug tests
• Information about the employer's program for educating employees on workplace safety risks associated with drug use
• A description of disciplinary actions that the employer may exert on an employee who violates the standard of conduct or fails a workplace drug test
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• A statement that any information obtained through workplace drug testing that is unrelated to drug use will be kept confidential by the MRO and may not be disclosed to the employer

Employees Exempted From Montana Workplace Drug Testing Laws

Although the state has a workplace drug law, no state statute mandates employers in Montana to create workplace drug policies or drug test employees. However, there are certain exemptions. Drug testing is mandated for employees in certain positions, including the following:

• Employees in hazardous environment jobs
• Employees handling public safety, security, and fiduciary positions
• Those working in intrastate transport jobs

What are the Requirements for Drug Testing Labs in Montana?

Only certified laboratories that comply with 49 CFR Part 40 may be engaged by Montana employers to conduct workplace drug tests on their employees. Such labs must be certified by the U.S. Department of Health and Human Services (HHS) under the National Laboratory Certification Program (NLCP) for each specimen testing procedure required under 49 CRF Part 40.