What Employers Should Know About Drug Screening Laws and Compliance
Drug testing in temporary staffing raises unique legal and operational challenges for employers. From compliance with state laws to coordinating with staffing agencies, understanding your obligations is critical to maintaining a safe and lawful workplace.
Why Drug Testing Matters in Temporary Staffing
Temporary workers often fill roles in manufacturing, logistics, healthcare, and other safety-sensitive industries. Employers have a vested interest in maintaining a safe work environment, reducing liability, and ensuring productivity. But unlike full-time hires, temp workers are typically employed by a staffing agency. That distinction raises important questions:
- Who is responsible for drug testing?
- What standards apply?
- How do state laws factor in?
Responsibilities: Employer vs. Staffing Agency
In most temporary staffing arrangements, the staffing agency is the employer of record. That means the agency typically handles onboarding, payroll, and compliance—including drug testing.
However, the client company (i.e., the business where the worker is placed) still holds responsibility for workplace safety under OSHA and other regulations. This shared accountability makes it critical to align expectations around drug testing before onboarding begins.
What Employers Should Do:
- Define Requirements Clearly: Include drug testing policies in your service agreement with the staffing agency.
- Understand the Agency’s Process: Confirm whether the agency conducts pre-employment, random, post-accident, or reasonable suspicion testing.
- Audit for Compliance: Ensure that the agency follows proper procedures and maintains documentation.
Choosing Which Positions to Drug Test: Legal Guidelines
Employers may want to focus drug testing efforts on specific job roles, particularly those involving safety-sensitive tasks. However, selective drug testing must be based on legitimate business necessity and job-related criteria to avoid claims of discrimination or unfair treatment.
Legal Considerations:
- Consistent Application: You must apply drug testing policies consistently across similarly situated employees or roles. Testing only certain individuals without a job-related reason can open the door to legal challenges.
- Job-Relatedness: You can legally require drug testing for roles that involve operating heavy machinery, driving, working with vulnerable populations, or handling hazardous materials.
- Document the Rationale: Keep written justifications for why specific roles require testing. This helps establish business necessity if challenged.
- Avoid Discriminatory Practices: Testing decisions cannot be based on protected characteristics such as race, gender, age, or disability.
Illinois-Specific Note:
Illinois does not mandate drug testing, but if an employer chooses to conduct testing, it must be done fairly and consistently. Employers should avoid testing only certain positions unless there’s a clear, documented safety or legal reason.
For guidance, see the EEOC’s position on medical inquiries and drug testing: EEOC – ADA Enforcement Guidance
State Laws Vary—Significantly
Drug testing regulations differ from state to state, especially when it comes to marijuana. Some states permit recreational or medical use, while others maintain strict prohibition. This inconsistency can complicate testing policies for temp workers who may cross state lines for work.
Illinois-Specific Considerations
Illinois legalized recreational marijuana use for adults in 2020. However, employers may still maintain a drug-free workplace and conduct drug testing.
Key points from the Illinois Cannabis Regulation and Tax Act:
- Employers may prohibit use at work or while performing job duties.
- Employers may discipline or terminate employees based on a good faith belief that the person was impaired at work.
- A positive drug test alone is not sufficient to prove impairment.
For temporary staffing in Illinois, this means agencies and employers should:
- Avoid blanket no-hire policies based on marijuana test results.
- Document any signs of impairment before taking adverse action.
- Train supervisors on recognizing impairment legally and safely.
Federal Considerations
Federally regulated industries (e.g., transportation, aviation, defense) must follow strict drug testing rules under DOT or other agency guidelines. In these cases, marijuana remains a banned substance—regardless of state laws.
Final Thoughts
Drug testing in temporary staffing is not one-size-fits-all. Employers must:
- Know the laws in their state.
- Collaborate closely with staffing partners.
- Keep policies updated as regulations evolve.
- Apply testing protocols fairly and consistently to avoid liability.
With smart planning and clear communication, employers can protect their workforce, stay compliant, and avoid costly legal missteps.
Need help aligning your staffing practices with current drug testing laws? Contact us to learn how we can support your compliance strategy.