New Hampshire Drug Testing Laws 2024

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New Hampshire Drug Testing Laws 2024

New Hampshire has no specific state laws addressing workplace drug testing. Therefore, employers in the state must adhere to federal employment drug testing laws when applicable. New Hampshire employers have the discretion to implement drug testing for employees, but they are obligated to bear the costs of the tests.

Federal regulations permit employers to establish a drug-free workplace, safeguarding the rights of employees. Government employees and professionals in high-risk occupations, such as airline pilots, heavy machinery operators, and school bus drivers, are mandated to undergo drug testing under federal law.

The Drug-Free Workplace Act of 1988 targets substance abuse within workplaces, necessitating employers to formulate a comprehensive drug-free workplace policy. This policy must explicitly prohibit controlled substances and outline the repercussions for policy violations. Every employee is entitled to receive a written copy of this policy.

Additional federal laws protect employees against discrimination, defamation, wrongful discharge, and invasion of privacy. An employer may breach privacy laws if an applicant or employee is compelled to engage in an indecent act for drug testing purposes in New Hampshire. However, deliberately publicizing a false positive drug result may lead to defamation liability for the employer.

The Americans with Disabilities Act (ADA) safeguards applicants or employees taking medications for their disabilities. Certain prescribed medications can trigger positive results in drug tests, and some drugs, despite being otherwise illegal, may be legitimately prescribed for specific medical conditions. If an applicant is denied employment due to a positive drug test resulting from legally prescribed medication for a disability, the prospective employer could face legal repercussions under the ADA.

What Kinds of Drug Tests Can Employers Conduct in New Hampshire?

Employers in New Hampshire can legally test for a wide range of banned drugs, including cocaine, marijuana, PCP, methamphetamines, opioids, amphetamines, barbiturates, benzodiazepines, methadone, propoxyphene, methaqualone, with significant freedom in choosing testing methods and substances.

Employers may ask for urine, saliva, blood, and hair samples for drug tests, such as:

• Pre-employment Test: A pre-employment test is a screening process conducted as a prerequisite for hiring new employees. It is designed to identify the presence of drugs or alcohol in potential hires and is typically integrated into the standard hiring procedures of employers
• Random Test: Random tests are conducted among employees without prior notice or a specific trigger. Unlike pre-employment tests, these screenings are not directed at particular individuals based on suspicion or job requirements. The intention is to deter substance abuse and maintain a drug-free workplace environment
• Reasonable Suspicion Test: Reasonable suspicion tests are initiated based on observable behaviors, appearance, or performance issues. A supervisor's reasonable belief that an employee is under the influence triggers this type of testing. To justify the test, specific and documented observations are required

Can Employers Do Random Drug Testing in New Hampshire?

Nothing in New Hampshire laws restricts an employer from conducting random drug testing.

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

There are no stipulated protections for prospective employees who fail a drug test for a job in New Hampshire. If you fail a drug test, the employer can refuse to grant you the job.

Can I Be Fired for Refusing a Drug Test in New Hampshire?

Yes. You can be fired in New Hampshire for refusing a drug test. A New Hampshire employer reserves the right to terminate your employment if you refuse to submit to a drug test.

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

Since New Hampshire does not have drug testing laws, employers may penalize or terminate an employee for failing a drug test. However, per Section 126-X:1 to 126-X:11 of the New Hampshire Annotated Revised Statutes Annotated, an employer can discipline or terminate an employee for using medical marijuana while at work or for being under the influence of medical marijuana at work. However, employers do not have to allow employees to use medical marijuana at work, even if they have medical marijuana cards.

Also, medical marijuana use off workplace environments may not be a cause for termination or other workplace penalties. According to a New Hampshire Supreme Court ruling (Scott Paine v. Ride-Away case) in January 2022, patients enrolled in the state's medical cannabis program must be given reasonable accommodations at their workplaces pursuant to the state's discrimination law.

In the Scott Paine v. Ride-Away case, Scott Paine was fired for a positive marijuana test at work (Ride-Away) despite having an unexpired New Hampshire medical marijuana card. With the court's ruling providing precedence for patients punished for off-work medical marijuana use, you can file a lawsuit against your employer for any discriminatory act related to an off-work environment medical marijuana use if you have an unexpired medical marijuana card.

Can Employers Conduct Drug Tests on Applicants in New Hampshire?

New Hampshire employers often drug test applicants as the state has no law prohibiting such an action. There are no state-recommended test types; employers typically use their preferred drug testing types and methods.

Is Pre-Employment Drug Testing Allowed in New Hampshire?

There are no specific laws relating to pre-employment drug testing in New Hampshire. Hence, pre-employment drug tests are neither mandatory nor illegal. Some employers opt to drug test applicants prior to their resumption at work, having offered them a job position. In such a case, the offer may be rescinded if the prospective employee fails a drug test.

Does New Hampshire Allow Public Agencies to Submit Employees to Workplace Drug Tests?

There are currently no workplace drug testing laws in New Hampshire. Public agencies may submit employees to workplace drug tests. If you are seeking employment in a public agency in the state, you can expect to be asked to undergo periodic or random drug tests as outlined in the agency’s workplace drug policy.

Can Employers Choose to Create Drug-Free Workplace Policies?

New Hampshire employers usually align with federal employment drug testing laws as the state has not enacted specific drug testing regulations. Under federal employment drug testing laws, employers are allowed to maintain drug-free workplaces while protecting the rights of their employees. In line with this provision, many New Hampshire employers have workplace drug policies that prohibit workplace drug use to ensure the safety and privacy of all employees.

Employees Exempted From New Hampshire Workplace Drug Testing Laws

New Hampshire has yet to enact drug testing laws. However, persons employed pursuant to federal regulations, such as commercial driver licensees and other federal employees, are subject to federal drug testing laws. Under these laws, employees may be required to undergo pre-employment and random drug tests.

What are the Requirements for Drug Testing Labs in New Hampshire?

Since the state does not yet have a drug testing law, there are specific requirements for laboratories that may conduct drug testing in New Hampshire. However, most employers in the state use SAMHSA-certified laboratories.

The SAMHSA certification is essential for drug testing laboratories, as it signifies that the laboratory adheres to specific standards and guidelines set forth by the Substance Abuse and Mental Health Services Administration. SAMHSA certification ensures the laboratory's drug testing procedures meet rigorous quality and accuracy criteria. Also, SAMHSA certification may enhance the admissibility of drug test results in legal proceedings. Courts and regulatory bodies may view SAMHSA-certified testing procedures as more reliable and credible.