Workplace Drug Testing Laws in Virginia: What Employers Can Do

Virginia Code section 40.1-28.7 provides the framework for employer drug testing and is stronger than the federal baseline in several respects. Virginia requires employers to provide written notice of drug testing policies before implementation, which exceeds federal requirements. The state law mandates that testing can only occur in specific circumstances: with reasonable suspicion based on objective facts, following workplace accidents, or as part of a comprehensive safety program for safety-sensitive positions. Employers must use certified laboratories and follow strict chain-of-custody procedures.

Unlike federal law which allows broad discretion, Virginia requires confirmation testing when initial results are positive. Section 40.1-28.7 explicitly permits employees to request and pay for independent confirmation testing at their own expense. The law applies to all Virginia employers with no minimum employee threshold, covering both public and private sector employers. Notably, Virginia does not authorize random drug testing without reasonable suspicion or post-accident circumstances, creating stronger employee protections than many other states.

Virginia Code section 40.1-28.7:1 requires employers to inform employees in writing about the specific circumstances under which testing will occur, procedures for handling positive results, and employee rights regarding test results and confirmation testing. Employers must maintain confidentiality of test results and can only disclose information to employees, legal representatives, insurance carriers, and designated medical review officers. The state provides a private right of action under tort law for violations of testing procedures, allowing employees to sue for damages including attorney's fees.

Virginia law provides limited exceptions to testing restrictions. Safety-sensitive positions explicitly referenced in federal regulations (Department of Transportation positions, nuclear industry workers, certain aviation roles) may be subject to broader testing without requiring reasonable suspicion, as federal law preempts state law in these regulated industries. Employers in construction and manufacturing with documented history of workplace safety incidents may test after accidents without independent justification.

The law does not apply to drug testing required by federal law, federal contractors, or positions requiring security clearances. Testing of job applicants before hiring has more flexible requirements than testing of current employees, though employers must still follow procedural safeguards. An employee's admitted prior drug use or presence during workplace incident investigation may constitute reasonable suspicion. However, mere proximity to drug use or generalized workplace rumors do not constitute reasonable suspicion.

Employees cannot be tested based solely on physical appearance, age, or demographics. Virginia permits testing of employees involved in accidents only if the accident resulted in injury or significant property damage. Importantly, a single positive test result without confirmation is not sufficient grounds for termination; Virginia requires the second confirmatory test before disciplinary action. The law does not require employers to test at all—it only regulates testing when employers choose to conduct it.

Step 1: Document everything related to the drug testing. Keep copies of the employer's written drug testing policy, any notification letters received, the date and circumstances of when testing was requested, and any written communication about test results. If you suspect reasonable suspicion is lacking, document the specific statements made by supervisors and the actual circumstances of the workplace incident or concern. Maintain records of any side effects or complications experienced during the testing process.

Step 2: Request your test results in writing from your employer immediately after learning of a positive result. Under Virginia Code section 40.1-28.7, you have the right to see your results and know what substance triggered the positive. If you believe the result is inaccurate, request confirmation testing at a different certified laboratory within 10 days. Request this confirmation in writing and keep copies. Ask your employer about their procedures for handling positive results and whether disciplinary action has been determined.

Step 3: File a complaint with the Virginia Department of Labor and Industry if you believe the employer violated testing procedures. The agency can be reached at 804-786-2377 or through their website at www.doli.virginia.gov. You may also file a civil lawsuit under Virginia Code section 40.1-28.7 for damages if testing violated the statute's requirements. There is no strict filing deadline, but acting quickly preserves evidence. Provide documentation of the testing circumstances, written policies, and any evidence the employer failed to follow required procedures.

Step 4: The Virginia Department of Labor and Industry investigation process typically involves reviewing the employer's drug testing procedures, examining chain-of-custody documentation, and verifying that proper notice was provided. Investigations generally take 60-90 days. The agency will contact you if additional information is needed. You may also consult the laboratory that performed the test about whether proper procedures were followed. If the initial test was positive and no confirmation was offered, this is a clear violation.

Step 5: Consult an employment attorney experienced in Virginia drug testing law before accepting any adverse employment action based on a positive test result. An employment lawyer can review whether your employer complied with Virginia Code section 40.1-28.7 requirements and advise on whether you have grounds for a civil claim for damages, lost wages, and attorney's fees. Contact the Virginia State Bar's lawyer referral service at 800-552-7977 if you need assistance finding an attorney.