Drug Testing in Delaware

General Private-Employer Programs

For an ordinary private employer outside a specifically regulated sector, the Delaware sources reviewed for this page do not prescribe one universal statewide testing procedure. A defensible program should therefore begin with a clear written policy and then account for any job-specific, contractual, federal, disability, medical-marijuana, and other applicable requirements.

• Identify who is subject to testing and the permitted testing reasons.
• Apply applicant and employee testing rules consistently.
• Use documented chain-of-custody and laboratory confirmation procedures.
• Use Medical Review Officer review when appropriate for laboratory positives.
• Address refusal, adulteration, substitution, and prescription-medication review.
• Check whether a Delaware sector-specific statute applies before using a generic policy.

Home-Care and Related Applicants

Delaware Code Title 16 §1146 requires mandatory pre-employment drug screening for covered applicants associated with home health agencies, hospice agencies, personal assistance services agencies, and certain care provided in private residences.

The statute requires the employer to obtain the drug-screening result before employing the covered applicant and directs the Department to regulate screening for marijuana/cannabis, cocaine, opiates, PCP, amphetamines, and other specified illegal drugs.

Official source: Delaware Code Title 16 §1146 — Mandatory Drug Screening

Public Works Contracts Require Drug-Testing Provisions

Delaware Code Title 29 §6908 directs the State’s public procurement system to include provisions in public works contracts paid in whole or in part with public funds requiring the contractor, its agents, and employees to implement a mandatory drug-testing program for nonclerical employees or agents working on the job site.

Contractors performing Delaware public works should therefore confirm the current procurement rules and contract language instead of relying only on an ordinary company testing policy.

Official source: Delaware Code Title 29 §6908 — Public Procurement

State Safety- and Security-Sensitive Positions

Delaware also mandates or authorizes pre-employment, random, incident-triggered, and reasonable-suspicion testing for specified government safety- and security-sensitive positions.

For example, Department of Correction security-sensitive employees are subject to random testing, applicants are subject to pre-employment testing, and employees may be tested after specified incidents or on reasonable suspicion. Other Delaware agencies and courts have their own statutory testing rules.

Official source: Delaware Code Title 29 §§8920–8925 — Department of Correction Mandatory Screening

Adult-Use Legalization Preserves Employer Authority

Delaware Code Title 4 §1304 states that the adult-use marijuana chapter is not intended to impact or impose any requirement or restriction on employers with respect to terms and conditions of employment, including accommodation, policies, or discipline.

Section 1307 also allows an employer or other entity controlling property to prohibit or regulate marijuana possession, consumption, use, display, transfer, distribution, sale, transportation, or growing on or in that property.

Official source: Delaware Code Title 4 §§1304 and 1307 — Delaware Marijuana Control Act

Medical Marijuana Patients Have Employment Protection

Delaware Code Title 16 §4905A generally prohibits an employer from discriminating in hiring, termination, or another term or condition of employment based on a person’s status as a medical-marijuana cardholder.

The statute also generally protects a registered qualifying patient from discrimination based on a positive test for marijuana components or metabolites unless the patient used, possessed, or was impaired by marijuana at the workplace or during work hours. An exception also applies when the employer would lose a federal monetary or licensing-related benefit.

Official source: Delaware Code Title 16 §4905A — Discrimination Prohibited

Medical Marijuana Does Not Permit Workplace Impairment

Section 4907A does not require an employer to allow marijuana ingestion in the workplace or to allow an employee to work while under the influence of marijuana.

At the same time, a registered qualifying patient is not considered under the influence solely because marijuana metabolites or components are present. Employers may discipline an employee for ingesting marijuana at work or working while under the influence.

Official source: Delaware Code Title 16 §4907A — Acts Not Required; Acts Not Prohibited

Choosing THC or No-THC Panels

• Adult-use legalization does not by itself prevent a Delaware employer from maintaining a THC-testing policy.
• Registered medical-marijuana patients have stronger protections than ordinary adult-use consumers.
• A medical patient’s positive THC result should not automatically be equated with workplace impairment.
• Federal and sector-specific rules can require marijuana testing even when a non-DOT employer would otherwise exclude THC.
• No-THC panels are available when marijuana testing is intentionally excluded from a lawful non-DOT program.

DOT Rules Are Separate from Non-DOT Testing

A personal or employer non-DOT drug test should not be substituted for a test that is required under DOT regulations. DOT programs have specific requirements for test reasons, forms, collection procedures, laboratories, Medical Review Officers, refusals, records, and return-to-duty processes.

Federal source: U.S. Department of Transportation — 49 CFR Part 40

Examples of DOT-Regulated Industries

• Commercial motor carriers regulated by FMCSA.
• Aviation employers regulated by FAA.
• Railroad employers regulated by FRA.
• Public transit employers regulated by FTA.
• Pipeline operators regulated by PHMSA.
• Other covered transportation operations under federal rules.