Delaware employment drug testing laws are almost non-existent, allowing companies to conduct drug tests on employees or applicants at the employer’s behest. This leniency does not come without its liabilities as employees are offered protection in cases where discrimination, defamation, or wrongful termination occur. The exception to Delaware’s drug testing laws are found in § 9020 under Title 29 of the Delaware Statutes, Department of Services for Children, Youth and their Families (DSCYF). Most employers are neither restricted nor required to perform drug tests, but the Department must conduct drug testing on applicants and current employees who are responsible for the safety/security/care of a child.

Can Current Employees be Tested? (Regular employers) Yes, there are no restrictions to employee drug testing as long as the employer does not make any decisions based on discriminatory factors. This includes race, age, gender, as well as employees taking medication for a disability (protected by the ADA).

(DSCYF) Yes, the Department is required to perform drug tests on employees under the following circumstances:

  • random testing of safety, security sensitive and child care employees
  • reasonable suspicion

Is Certified Testing Required? (Regular Employers) No. (DSCYF) Yes.

Laws – Title 29, § 9020 (Only applies to DSCYF)

What can be Tested? No restrictions.

How to Conduct a Legal Drug Test (DSCYF)

Step 1 – Although it is not necessary, an employer may choose to have an employee or applicant fill out a Drug Test Release Form before performing any tests.

Step 2 – The State requires that a federally certified collector conducts all urine collections, in compliance with the Federal Department of Transportation.

Step 3 – Samples must be sent to an HHS-certified lab. A list of certified labs can be found on the SAMHSA website.

Step 4 – A positive test result will be confirmed using the Gas Chromatohraphy/Mass Spectrometry (GC/MS) and confirmation test results will be reviewed and interpreted by a Medical Review Officer (MRO). The MRO will allow an employee the chance to explain a positive test result and, should they deem it a legitimate explanation, can report a negative result to their employer.

Step 5 – A positive result means a refusal to hire an applicant or immediate removal of a current employee without pay. The employee can participate in a drug abuse assistance or rehabilitation program. If they choose not to, they will be dismissed from employment.