New Hampshire Laws on Drug Testing

There are no laws in New Hampshire restricting or prohibiting drug testing. There is a law (CHAPTER 36-HB 597-FN) requiring licensed health care facilities and providers to implement drug-free workplace programs.  This legislation requires licensed health care facilities and providers to adopt a policy establishing procedures for prevention, detection, and resolution of substance abuse, misuse, or diversion in the workplace (see additional information below).

An employee is not entitled to a workers compensation claim when an injury to a worker which is caused in whole or in part by the intoxication, or by the serious and willful misconduct of the worker. The provision as to intoxication shall not apply, however, if the employer knew that the employee was intoxicated.

Unemployment claims can be denied when an employee is terminated based on a written company policy for a positive drug test.

Medical Marijuana in the Workplace: The law does not limit employers in disciplining an employee for ingesting cannabis at the workplace orfor working while under the influence of cannabis.  Employers can test for marijuana and can discipline employees testing positive or refusing to test for marijuana; a written drug-free workplace policy is highly recommended in order to limit any exposure to liability. Be sure that when dealing with the medical marijuana issues your company drug and alcohol testing policy and procedures meet other applicable state requirements, if any.  DOT programs strictly prohibit marijuana use, period.

No drug test regulations exist in New Hampshire.  Other factors may influence your company’s overall drug testing program. Those factors are mentioned below.

1. DOT: Your Company may have employees regulated by the United States Department of Transportation (DOT), such as commercial drivers (CDL). Companies typically have separate policies for their DOT-regulated programs. These policies and procedures should be based upon the DOT rules, which are extensive.
2. Unions: You may have employees that are represented by a collective bargaining agent or Union. If so be mindful of certain requirements:
   1. The initial introduction of any drug testing program into your workplace may be a mandatory issue for collective bargaining.
   2. Union-represented employees have a right to consult with a Union representative in any “investigatory” meeting that could lead to discipline.
   3. So in any reasonable suspicion situation you must consider if the suspected Union member has a right to talk to a Union representative before the test takes place and, if so, what parameters might be placed around that meeting.
   4. The written drug free workplace policy should include all provisions of the Union involvement in the drug free workplace program.
3. Customer or Contract Requirements: Employers may have customers that require drug and alcohol testing programs, including testing. Such requirements are prevalent in the construction industry as well as others.

Drug-Free Workplace for Licensed Health Care Facilities and Providers

151:41 Controlled Substance Abuse, Misuse, and Diversion Prevention.

I. Facilities and providers licensed under this chapter, with the exception of laboratories and collection stations, shall adopt a policy establishing procedures for prevention, detection, and resolution of controlled substance abuse, misuse, and diversion. The facility or provider shall establish written procedures to implement its policy that shall apply to employees, contractors, and agents of the facility who provide direct or hands on care to clients when acting within the scope of their employment or representation and shall designate an employee or interdisciplinary team of employees to be responsible for the policy.

II. The policy required under paragraph I shall include:

(a) Education of health care workers.

(b) Procedures for monitoring storage, distribution, and procurement of inventory if controlled substances are stored, dispensed, or administered at the health care setting.

(c) Procedures for voluntary self-referral by addicted employees.

(d) Procedures for co-worker reporting.

(e) Procedures for drug testing which shall include, at a minimum, testing where reasonable suspicion exists.

(f) Procedures for employee assistance.

(g) Provisions for confidentiality.

(h) A process for the investigation, reporting, and resolution of drug misuse or diversion.

(i) Consequences for violation of the drug misuse and diversion prevention policy.

For expert consultation on drug free workplace in New Hampshire, call Joe Reilly at National Drug Screening at 321 622 2020.