Indiana Drug Testing Laws for Employers

A Deliberate Silence

Most states have no testing statute because the question never got legislative attention. Indiana is different: Ind. Code 22-9-5-24(c) states that nothing in the chapter shall be construed to encourage, prohibit, or authorize the conducting of drug testing, or making employment decisions based on the results. That is a choice, recorded in the code.

Two adjacent provisions make the space it leaves usable. Ind. Code 22-9-5-24(b) provides that a test to determine the illegal use of drugs is not a medical examination for purposes of the chapter, which takes such a test outside the medical-examination restrictions. And 22-9-5-24(a) confirms a covered entity may prohibit illegal drug use and alcohol use at the workplace, require that employees not be under the influence, require conformance with the federal Drug-Free Workplace Act of 1988, hold users to the same standards as other employees, and require compliance with Department of Defense, Nuclear Regulatory Commission and Department of Transportation regulations where applicable.

So for a private Indiana employer there is no statute setting policy contents, notice periods, confirmation testing, cutoff levels or an employee right to explain a result. Marijuana is illegal in every form, so there is no cannabis protection to work around either.

The Public Works Exception, Which Is Not Optional

Ind. Code 4-13-18 applies to public works contracts awarded after June 30, 2006 with an estimated project cost of $150,000 or more, and it reaches subcontractors as well as prime contractors. It is the only place in Indiana law where an employer is told how to run a testing program, and it is prescriptive.

The plan is a bid document. Ind. Code 4-13-18-5(a) requires the solicitation to require every bidding contractor to submit a written plan with the bid, and 4-13-18-5(b) provides that a contract may not be awarded to a contractor whose bid does not include a compliant plan. A contractor covered by a collective bargaining agreement is treated as compliant if the agreement establishes a program with random testing, the five-panel test and the specified disciplinary measures, in which case a copy of the relevant part of the agreement constitutes the written plan.

The program itself has four elements under 4-13-18-6(a):

1. Annual coverage: each employee subject to a drug test at least once each year.
2. Monthly random draw: employees tested randomly, with at least 2 percent selected each month.
3. A five-panel test for amphetamines, cocaine, opiates at 2000 ng/ml, PCP and THC, at minimum.
4. Progressive discipline: a 30-day suspension, treatment referral and a year of unannounced testing after a first positive; 90 days after a second; one year after a third.

The enforcement mechanism is contractual rather than regulatory. Ind. Code 4-13-18-7 requires the contract to provide for cancellation if the contractor fails to implement the program, fails to provide information about it, or provides false information. That makes this a bid-qualification and contract-risk question, which is why it usually belongs with whoever owns your public bidding process rather than only with HR.

Mine Operators Have Their Own Chapter

Ind. Code 22-10-15 permits a mine operator or its representative to test when there is probable cause with respect to an employee, or on a random basis among mine employees, and allows testing for illegal drug use or for an alcohol concentration of at least 0.04 grams per 100 milliliters of blood or per 210 liters of breath. Ind. Code 22-10-15-6 requires a legally approved technique, testing conducted under SAMHSA standards, a laboratory certified under the National Laboratory Certification Program, and results certified by a medical review officer.

The Reason to Have a Policy Anyway

Indiana does not require a written policy, but two statutes reward one.

Workers' compensation. Ind. Code 22-3-2-8 denies compensation for injury or death due to intoxication, or to the employee's knowing failure to obey a reasonable written or printed rule of the employer which has been posted in a conspicuous position in the place of work. The burden of proof is on the employer. So the employer-rule ground is conditioned on the rule being written, printed and posted — an unposted policy will not support the defense.

Unemployment. Ind. Code 22-4-15-2(g) treats a withdrawn job offer as the applicant's refusal of suitable work where the applicant tested positive on a pre-employment test given on behalf of the prospective employer, or refused without good cause to submit to one. Subsection (h) provides that the department's records of such a test may not be admitted against a defendant in a criminal proceeding.

Where This Lands

Indiana's employment base is concentrated in manufacturing including automotive, steel and recreational vehicles, pharmaceuticals and life sciences, transportation and warehousing, healthcare, agriculture and food processing, construction, and heavy civil contracting. That last category is the reason the public works chapter matters more here than a narrow carve-out normally would: a large share of Indiana's construction employers bid work above the $150,000 threshold, and for them a compliant written plan is not a policy decision but a condition of being awarded the job.