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Drug-Free Workplace Policy and Program Template

Delaware Drug Testing Laws and Regulations

State: Delaware
Statute of Order: Del. Code Ann. Tit. 21 §2708
Covered Employers: Public and private schools and entities that furnish transportation services to schools; Department of Corrections.
Applicant Testing: Testing required to certify school bus drivers. Testing also required for security-sensitive positions with Department of Corrections.
Employee Testing: Employee testing is not subject to restriction.
Conditions & Methods: Further analysis in case of positive findings.
Important Bulletpoints:
  • State specified job industries where drug testing are compulsory include home healthcare practitioners, staff for nursing homes, school bus drivers and aids, those involved in harness racing and employees of the Department of Corrections.
  • Delaware employers are required by law to pay for all expenses for required employment related medical examinations. Drug testing is presumed to be categorized as a medical examination however there have been no court precedents that have made a decision on this matter.
  • Employers of nursing homes who fail to comply with the mandatory drug or intoxication screening requirements may be liable to pay State mandated fines.
  • Employees who are tested positive or refuse to be tested for controlled substance use or intoxication may be regarded as ineligible to receive workers’ compensation benefits as well as unemployment benefits. For such purposes, employers must have a written policy on maintaining a drug-free workplace program.
  • Apart from those enumerated above, no other legal restrictions or rules exists in Delaware insofar as testing for substance abuse for employment purposes are concerned and as such it may be considered an “open” State.
  • Medical Marijuana Law:

    The State of Delaware legalized medical marijuana on May 13, 2011 by way of Senate Bill 17 but the first dispensary (compassion center) only opened in June 2015 with a second center expected in Kent County towards the 2nd half of 2017 and a 3rd and final center planned for Sussex County.1 The law allows medical marijuana to include its use, acquisition, administration, possession, delivery/transportation or transfer. It also allows the use of paraphernalia related to its administration for the treatment or alleviation of symptoms associated with a patient’s debilitating medical condition.

    Qualifying Medical Conditions

    • Cancer

    • HIV/AIDS

    • Decompensated cirrhosis

    • Amyotrophic lateral sclerosis

    • Alzheimer's disease

    • PTSD

    • Intractable epilepsy

    • Cachexia (wasting syndrome)

    • severe, debilitating chronic pain

    • Intractable nausea

    • Seizures

    • Severe and persistent muscle spasms, including multiple sclerosis

    • Other medical condition as approved

    Limitations

    • No person should undertake any task while under the influence of marijuana when the act would be tantamount to negligence or professional malpractice;

    • Possession of marijuana or using medical marijuana is not allowed a) in a school bus, b) in any preschool or primary or secondary school, c) in any correctional facility, d) in any health care or treatment facility operated by the Department of Health or funded through the Department;

    • Smoking marijuana is not allowed a) in any form of transportation or b) in any public place;

    • Operating any motor vehicle while under the influence of marijuana is not allowed;

    • Transferring marijuana to any person who is not qualified under this law.

    Recreational Marijuana

    House Bill 39 - An Act to Amend Title 16 of the Delaware Code Relating to Marijuana took effect on December 18, 2015. Prior to this bill, marijuana possession was a criminal offense that meant either jail time of up to 3 months or a fine of up to $575, or both. This bill reduced private use or possession of marijuana of up to 1 ounce by for adults 21 or older a civil violation only, not a criminal offense. The fine is likewise reduced to $100 and confiscation of the marijuana. Public use is an unclassified misdemeanor with a criminal fine of up to $200, jail time of up to 5 days or both. Use or possession of up to 1 ounce of marijuana for those under 18 is an unclassified misdemeanor punishable by a criminal fine of $100 and confiscation of the marijuana.

    Effects on Workplace Drug Testing

    Delaware Code Title 16 Chapter 49A – The Delaware Medical Marijuana Act:

    4907A(a) Nothing in this chapter requires:

    (3) ”An employer to allow the ingestion of marijuana in any workplace or to allow any employee to work while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana”; and

    4907A(b) “Nothing in this chapter prohibits an employer from disciplining an employee for ingesting marijuana in the workplace or working while under the influence of marijuana”.

    Delaware Code Title 16 Chapter 47 still lists marijuana in different quantities (tiers) as a controlled substance, and while the penalties for its private use by an adult may have been reduced, nothing in the chapter explicitly prevents employers from continuing to impose existing drug-free workplace policies as may apply to marijuana, nor does any of its provisions prevent employers from implementing a drug test program if they don’t already have one, all in interest of maintaining employee performance, safety and productivity.

    Sources:

    https://www.mpp.org/states/delaware/

    http://www.delcode.delaware.gov/title16/c049a/index.shtml

    https://www.mpp.org/states/delaware/delawares-new-decriminalization-law-an-overview/

    Applicability: Law applies to physician, patient and caregiver 21 years or older.
    Quantity Allowed: Patients 18 years or older may possess 6oz. of Marijuana
    How Obtained: Growing not permitted at home. State Regulated Non-Profit Distribution System by Compassion Centers
    Liability Protections: Physicians: protected when recommending Marijuana for medical use. Patient: no arrest for possession of Medical Marijuana if they have a valid I.D. card. Caregivers, visiting patients under certain conditions and compassion centers and their employees protected. Discrimination prohibited by school, landlord or employer, with limited exceptions.
    Statutory Requirements for Authorized Use: Identification card required, copy of physician state required. Identification cards issued by State Department of Human Services.
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    Material on these pages (state drug testing laws and drug testing regulations) is provided for informational purposes only and does not constitute legal, medical or technical advice. This drug testing related information is not intended as substitute for obtaining legal advice from attorney, or a relevant medical technical or financial professional. TestCountry is not a law firm or a legal agency, therefore cannot guarantee the accuracy of this content. Drug testing laws are collected from legal and/or state sources, and it may or may not be valid by the time you are viewing it. Any views or opinions expressed are solely those of the author and do not necessarily represent those of Confirm Biosciences Inc. DBA TestCountry.

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