Hawaii is one of the few states with a dedicated statute that governs how workplace drug and alcohol tests must be performed, not just who may be tested. That statute, Hawaii Revised Statutes (HRS) Chapter 329B, Substance Abuse Testing, sets procedural requirements for notice, laboratory licensing, confirmation methods, and confidentiality that apply to most private employers. A separate chapter addresses medical cannabis, and other chapters touch workers compensation and unemployment insurance when a positive test or intoxication is involved. This article summarizes what the primary sources say. Hawaii law changes through the legislature and through department rulemaking, so employers should confirm the current statute text before writing or enforcing a testing policy.
HRS Chapter 329B: the core testing statute
Chapter 329B states its purpose directly: to ensure appropriate and uniform substance abuse test procedures statewide, protect the privacy rights of the people tested, and achieve reliable and accurate results. It defines a "third party" broadly to include any person, agency, or employer that requests testing, and defines a "medical review officer" as a qualified individual, appointed by the third party, who receives, reviews, and interprets laboratory test results. These definitions appear in HRS 329B-2.
Written notice before a sample is collected
Under HRS 329B-5(a), an employer must give the individual to be tested a written statement, before any sample is collected, listing the specific substances the test will cover and noting that over the counter medications or prescribed drugs may produce a positive result. A laboratory, including an on site screening location, may not test for any substance that is not on that written statement. The department of health is directed to adopt rules on medical review officer qualifications, how results are transmitted, and how testing information is kept confidential.
Laboratory licensing
HRS 329B-4 requires that substance abuse testing performed in Hawaii be done by a laboratory licensed by the department of health, or by a laboratory certified by the Substance Abuse and Mental Health Services Administration and approved by the director. Out of state samples must go to a SAMHSA certified lab approved by the director, and no out of state laboratory may itself be licensed by the department. The director's rules cover laboratory approval and license revocation, personnel qualifications, chain of custody, cutoff levels, and sample retention so that retesting remains available when necessary.
Screening versus confirmation, and the GC/MS requirement
Chapter 329B draws a clear line between an initial screening result and a confirmed positive. A "positive test result" is defined in HRS 329B-2 as a finding, through confirmatory testing, of drugs, alcohol, or drug metabolites at or above the cutoff levels the director has established. Under HRS 329B-4(c), the director's rules on methods of analysis must require that confirmatory tests for drugs or drug metabolites use a gas chromatograph with a mass spectrometer detector, or another reliable method the director approves. In practice, an initial immunoassay screen, whether run on a cup or a dip card, cannot by itself support discipline. It has to be followed by GC/MS or an equivalent confirmation at a licensed laboratory, interpreted by a medical review officer, before it becomes a reportable positive result.
On site screening tests have their own rules
HRS 329B-5.5 covers substance abuse on site screening tests, meaning portable devices that meet FDA requirements for commercial distribution or are made by a facility minimally certified to the ISO 13485 standard. An employer using one of these devices must follow the package insert instructions, and the operator administering the test must be trained by the manufacturer or its designee. A presumptive positive on an on site screen cannot, by itself, be used to deny employment or any benefit. Instead, the employer must have the individual report within four hours to a laboratory licensed under 329B-4 for testing under 329B-5, at the employer's expense. An individual who fails to report may be denied employment or have adverse action taken only if the employer first gave written notice stating that it followed the on site screening procedures, that the individual could have refused the on site test, and that refusing or failing to report for the laboratory test could lead to adverse action. On site screening information is confidential under the same section, with narrow disclosure exceptions.
Confidentiality of results
Separately, HRS 329B-6(c) states that any information concerning a substance abuse test is strictly confidential and may not be released without the tested individual's informed written consent, with narrow exceptions for proceedings the individual initiates arising from a positive result. Anyone who receives information protected under the chapter takes on the same confidentiality obligation as the party who gave it. Failure to follow the chapter's procedures invalidates the test result, meaning it cannot be reported or used for any purpose.
DOT and other federal testing is exempt from chapter 329B
HRS 329B-2.5 lists exemptions from the chapter, including toxicology tests used in direct clinical patient management, alcohol tests under separate Hawaii statutes, testing of individuals under judiciary or corrections supervision, and tests conducted under subpart C of the federal Mandatory Guidelines for Federal Workplace Drug Testing Programs. HRS 329B-3 reinforces this by stating that no third party may require a substance abuse test that does not meet the chapter's requirements, except for third parties covered by a drug testing regulation the Hawaii or United States Department of Transportation has adopted. Employers running DOT regulated programs for safety sensitive employees still must follow the federal collection, laboratory, and medical review officer process in 49 CFR Part 40, regardless of how chapter 329B applies to their other testing.
Remedies for violations
HRS 329B-7 allows an aggrieved person to recover a penalty of between $1,000 and $10,000 for a willful and knowing violation, plus reasonable court costs and attorney fees, without limiting the right to recover actual damages. A court may also issue an injunction against a person or entity that is violating, or proposes to violate, the chapter.
Medical cannabis: HRS 329-122 does not require workplace accommodation
Hawaii's medical cannabis law is codified in a different chapter, HRS Chapter 329, Part IX. A qualifying patient's medical use of cannabis is lawful only if a physician or advanced practice registered nurse has diagnosed a qualifying debilitating medical condition, certified that the potential benefits likely outweigh the health risks, and the patient's supply does not exceed the statutory limit.
HRS 329-122(e)(2)(B) specifically excludes the medical use of cannabis "in the workplace of one's employment" from the law's protection, alongside school buses, public buses, moving vehicles, school grounds, and other public places. Nothing in the medical cannabis statute requires an employer to accommodate cannabis use during work hours or on employer premises. That said, Hawaii employers generally may want to consult counsel before taking action tied to a registered patient's status, since other state and federal protections, including disability law, can intersect with how a policy is applied in practice.
Workers compensation: HRS 386-3 and intoxication
HRS 386-3(b) states that no workers compensation is allowed for an injury an employee incurs through the employee's willful intention to injure oneself or another in an unprovoked, non work related altercation other than in self defense, or by the employee's intoxication. Hawaii's workers compensation law otherwise covers personal injury by accident arising out of and in the course of employment, or by disease caused by the nature of the employment, under HRS 386-3(a). Because intoxication is treated as a basis to deny a claim rather than an automatic bar, employers relying on it typically need documented, confirmed testing and should coordinate with counsel and the Hawaii Department of Labor and Industrial Relations.
Unemployment insurance: HRS 383-30 and misconduct
HRS 383-30(2) disqualifies an individual from unemployment benefits for a discharge for misconduct connected with work, continuing until the individual has since been paid wages in covered employment equal to at least five times the weekly benefit amount. A suspension for misconduct connected with work leads to a shorter disqualification tied to the seriousness of the conduct. Whether a documented, confirmed positive drug test or a refusal to test rises to disqualifying misconduct is decided case by case by the Hawaii Department of Labor and Industrial Relations, so employers should keep clear, confirmed documentation if a claim is contested.
Comparing testing pathways under chapter 329B
| Question | Lab based substance abuse test (HRS 329B-4, 329B-5) | On site screening test (HRS 329B-5.5) | Federal DOT test (49 CFR Part 40) |
|---|---|---|---|
| Who may perform it | A laboratory licensed by the Hawaii Department of Health, or a SAMHSA certified lab approved by the director | Any employer, using a device that meets FDA commercial distribution requirements or ISO 13485 manufacturing certification, following the package insert | DOT qualified collectors and SAMHSA certified laboratories under the federal program |
| Confirmation before a positive is reported | Required: GC/MS or a method the director has approved as reliable | Not final on its own; a presumptive positive must go to a licensed lab for 329B-5 testing | Required: GC/MS confirmation plus medical review officer verification |
| Written notice to the individual | Required before sample collection, listing substances tested and the over the counter medication disclosure | Written notice required only if the employer wants to take adverse action after a refusal or failure to report for lab testing | Required under the federal notice and medical review officer verification process |
| Who pays for confirmation | The third party (employer) under HRS 329B-3 | The employer bears the cost of the required laboratory referral | Generally the employer or DOT testing program |
| Coverage under chapter 329B | Fully covered | Fully covered, with the added confidentiality and notice rules in 329B-5.5 | Exempt from chapter 329B under HRS 329B-2.5(3) and 329B-3 |
Practical steps for Hawaii employers
Chapter 329B rewards documentation. Before any sample is collected, give the individual the written statement required by 329B-5(a) describing which substances will be tested and the over the counter medication disclosure. Route every initial screen, whether run with a cup, a dip card, or an oral fluid device, through a licensed laboratory for GC/MS or director approved confirmation before treating it as a positive, and have a qualified medical review officer interpret the confirmed result in light of any prescription documentation the individual provides. If an on site screening device is used, follow the manufacturer's package insert, make sure the operator is trained, and be ready to send a presumptive positive out for laboratory confirmation within the four hour window, at the employer's expense, with the required written notice if a refusal to report could lead to adverse action. Keep testing information confidential, and for safety sensitive positions subject to DOT rules, follow the federal process under 49 CFR Part 40 instead of the state on site screening procedure.
For related background, see our explainer on the medical review officer process and our overview of drug test confidentiality in the workplace. American Screening Corporation supplies drug test cups and related screening products for employers building a documented, confirmation backed testing program that can route through a licensed Hawaii laboratory.
Frequently asked questions
Does Hawaii require written notice before a drug test?
Yes. HRS 329B-5(a) requires that, before any sample is collected, the individual receive a written statement listing the specific substances to be tested and noting that over the counter medications or prescribed drugs may cause a positive result.
Can a presumptive positive on an on site screening test lead to discipline by itself in Hawaii?
No. Under HRS 329B-5.5, a presumptive positive from an on site screening test cannot be used to deny employment or any benefit, or support adverse action, unless the employer sends the individual to a laboratory licensed under 329B-4 for confirmation testing under 329B-5 within four hours, at the employer's expense.
Does Hawaii's medical cannabis law require an employer to accommodate cannabis use at work?
No. HRS 329-122(e)(2)(B) excludes the medical use of cannabis in the workplace of one's employment from the law's protection, and the statute does not create a general duty for employers to accommodate cannabis use during work hours or on employer premises. Other protections may still apply in specific situations, so employers should review the current statute and talk to counsel.
What confirmation method does Hawaii require before a positive test result can be reported?
Under HRS 329B-4(c), the Hawaii Department of Health's rules on confirmatory testing require a gas chromatograph with a mass spectrometer detector, or another method the director has approved as reliable, before a drug or metabolite result can be reported as positive.
Can intoxication affect a Hawaii workers compensation claim?
HRS 386-3(b) states that no compensation is allowed for an injury caused by the employee's willful intention to injure oneself or another in an unprovoked, non work related altercation, or by the employee's intoxication. Employers relying on this typically need documented, confirmed testing and should work with counsel and the Department of Labor and Industrial Relations on how it applies to a specific claim.
Can a positive drug test affect unemployment benefits in Hawaii?
A discharge for misconduct connected with work, which can include a documented, confirmed positive drug test depending on the facts, disqualifies an individual from unemployment benefits under HRS 383-30(2) until the individual has since earned wages equal to at least five times the weekly benefit amount. The Department of Labor and Industrial Relations decides misconduct questions case by case.
This article is general information about Hawaii statutes as a manufacturer and supplier of drug testing products understands them, not legal advice. Employers should confirm the current statute text at capitol.hawaii.gov and consult their own counsel before adopting or changing a testing policy.
