Montana Drug Testing Laws for Employers

The Act Works Through a Definition

The Workforce Drug and Alcohol Testing Act at MCA 39-2-205 through 39-2-211 restricts testing by restricting who counts as an employee for its purposes: individuals engaged in the performance, supervision or management of work in a hazardous work environment, a security position, or a position affecting public safety or public health; positions in which driving a motor vehicle is necessary for any part of the work duties; and positions involving a fiduciary responsibility for an employer.

Employer is defined broadly — a person or entity with one or more employees located in or doing business in Montana, expressly including local government governing bodies. There is no size threshold.

One structural point worth stating honestly: the Act contains no express prohibition on testing individuals outside those categories. It withholds its protections rather than forbidding the test. Whether testing an unlisted employee is actionable turns on case law and on Montana's constitutional privacy provision, and it is unsettled. We are flagging it rather than answering it.

Management Goes in the Pool

Random testing is permitted through one of two prescribed mechanisms. MCA 39-2-208(2)(a) allows a blanket sweep — establishing a date when all salaried and wage-earning employees will be tested. MCA 39-2-208(2)(b) allows a genuine random process, managed by the employer or a third party, which must include:

• an established calendar period for testing;
• an established testing rate within that period;
• a random selection process determining who is tested on any given date;
• all supervisory and managerial employees in the random selection and testing process; and
• a signed statement from each employee confirming receipt of a written description of the random selection process, retained in the personnel file.

Selection must be made by a scientifically valid method such as a random number table or a computer-based random number generator.

Two of these distinguish Montana. The statute sets no rate but requires you to fix one in advance and state it in the policy — so "we test roughly a quarter of the pool annually" is not sufficient; a number has to exist. And supervisors and managers cannot be carved out, which is the reverse of the common national practice of restricting random pools to hourly safety-sensitive staff. A Montana program that exempts management is not a qualified testing program.

The Rest of the Qualified Program

• 60 days' lead time. Written policies and procedures must be available for review by all employees 60 days before terms are implemented or changed.
• Eleven mandatory policy contents, including an employee education program and a stated alcohol concentration above which an employee must be sanctioned.
• Chain of custody at least as stringent as 49 C.F.R. Part 40 for non-DOT samples, with an FDA-cleared testing methodology.
• Split specimens for non-urine samples as defined by HHS, chain-of-custody transport, and mass-spectrometry confirmation of all screened positives.
• A medical review officer trained in substance abuse must review and certify a positive before the employer may take any action, after giving the individual a chance to supply relevant medical information.
• Breath alcohol by a certified breath alcohol technician using equipment on the Federal Register conforming products list, with a result above 0.04 required before the person is considered as having alcohol in the body.
• Incidental medical information unrelated to drug or alcohol use stays with the MRO and may not be released to the employer.
• Employer pays, and employees are compensated at their regular rate including benefits for time attributable to the program.
• Follow-up testing after a verified positive may run up to one year from the first follow-up test and must be described in the policy.

Procedure Decides the Compensation Claim

Montana has no premium credit. What it has is a direct link between your testing procedure and your claims outcome, which is unusual and worth exploiting.

MCA 39-71-407(5)(a) makes an employee ineligible for benefits where use of alcohol or drugs not prescribed by a physician is the major contributing cause of the accident. Then 39-71-407(5)(b) supplies the lever: where an employee fails or refuses a post-accident drug test, and if the testing procedures comply with federal drug testing statutes and regulations applicable to private sector employers as provided in Title 39, chapter 2, there is a presumption that the major contributing cause was the employee's drug use.

So procedural slippage has a price tag. An employer whose post-accident process does not meet the chapter 2 standard does not merely risk a technical violation — it forfeits the presumption on a refusal.

Subsection (6) extends the major-contributing-cause bar to medical marijuana, provides that an insurer need not reimburse medical marijuana costs, and bars enhancing benefits because of such use. Subsection (7) removes the defense where the employer knew of and failed to attempt to stop the use, but expressly does not apply that carve-out to medical marijuana, because marijuana is not a prescribed drug.

Cannabis: Two Statutes, One Unreconciled Gap

This is the hardest thing in Montana to state in one line, so we will not try.

On one side, MCA 39-2-313 prohibits discrimination for off-duty use of a lawful product, and since the 2021 amendment the definition of lawful product expressly includes marijuana. Subsection (2) bars refusing to employ or license, or discriminating in compensation, promotion or terms and conditions, because an individual legally uses a lawful product off premises during nonworking hours.

On the other side sit the exceptions. Subsection (3)(a) removes use that affects in any manner the individual's ability to perform job-related responsibilities or the safety of other employees, or that conflicts with a bona fide occupational qualification. Subsection (4) is broader still: an employer does not violate the section if it takes action based on the belief that its actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement. And MCA 16-12-108(5) preserves employer authority over workplace drug policies and intoxication at work.

How the lawful-product protection and subsection (4) interact for an off-duty cannabis positive with no impairment is not spelled out, and it turns on case law. It is unsettled. What we would say is that subsection (4) makes the existence and quality of your written program materially more important in Montana than a lawful-products statute would normally suggest.

One more Montana-specific risk worth knowing: the Wrongful Discharge from Employment Act makes your own written policy enforceable against you. A policy that promises a process you do not follow is a liability rather than a protection here.

Where This Lands

Montana's employment base spans healthcare, construction, mining and energy, agriculture and ranching, trucking and logistics, wood and paper products, and tourism. Construction, mining and trucking sit squarely inside the hazardous work environment definition, so for those employers the Act's coverage question is easy — and the supervisor-in-the-pool requirement is the item most likely to need fixing.