Montana is one of the few states with a standalone statute that spells out when and how an employer may test for controlled substances and alcohol. The law is called the Workforce Drug and Alcohol Testing Act, and it lives at Mont. Code Ann. 39 2 205 through 39 2 211. Unlike a handful of other states, Montana does not require a licensed drug free workplace program before an employer can test. Instead it limits who can be tested, what a compliant testing program has to include, and what happens after a positive result. This guide walks through the statute section by section, then covers the workers compensation and unemployment insurance rules that intersect with it, and closes with where Montana's cannabis law leaves employer testing policies.
This is general compliance information for employers and HR teams, not legal advice. Montana's statutes change from session to session, so confirm the current text on the state's own code site before you rely on it for a policy decision.
Does Montana have a general drug testing statute
Yes. The Workforce Drug and Alcohol Testing Act applies to any employer with one or more employees doing business in Montana, including local government bodies. But it does not apply to every job. The statute's definitions section, 39 2 206, limits "employee" for purposes of the act to someone working in a hazardous work environment, a security position, or a position affecting public safety or public health, one that requires driving as part of the job, or one involving a fiduciary responsibility to the employer. Independent contractors and local elected officials are excluded outright. In practice this covers most construction, manufacturing, transportation, healthcare, and safety sensitive office roles, but it leaves a general private sector desk job outside the statute's reach unless a fiduciary or driving duty brings it back in.
A "hazardous work environment" under 39 2 206 includes jobs where federal law already mandates testing, such as aviation, commercial motor carrier, railroad, pipeline, and commercial marine work, plus jobs around construction equipment, industrial machinery, mining, flammable materials, explosives, or toxic chemicals. If a role does not fit one of these categories, the written policy and procedural protections of the act still function as the template most Montana employers use anyway, because they track the federal 49 CFR Part 40 standard the legislature built the law around.
What a qualified testing program has to contain
Section 39 2 207 sets out the requirements for what the statute calls a "qualified testing program." The policy has to be written, and employees must be able to review it at least 60 days before it takes effect or changes. For samples covered by federal rules, testing procedures must conform to 49 CFR Part 40; for samples outside federal coverage, the employer's chain of custody and procedural requirements must be at least as strict as Part 40, and the testing method must be cleared by the FDA. The written policy itself must describe the legal sanctions for unlawful drug use, the employer's education efforts, standards of conduct, available employee assistance programs, the consequences of a positive result, the employer's hiring stance on applicants who test positive, dispute resolution steps, and a strict confidentiality rule limiting who can see results.
Testing has to be done at the employer's expense, and employees must be paid their regular rate, including benefits, for time spent in the testing process. Collection and confirmation of urine samples must follow 49 CFR Part 40 procedures, and nonurine samples such as oral fluid must be handled just as rigorously, including split specimens, documented chain of custody, and confirmation of any screened positive with mass spectrometry. No adverse action can be based on a raw screening result alone. Before an employer acts on a positive, the result must go to a medical review officer, defined in 39 2 206 as a licensed physician trained in substance abuse, and the tested individual must have a chance to disclose prescription or over the counter medication that could explain the result before the MRO certifies it.
| Testing type permitted | Statutory basis | Key condition |
|---|---|---|
| Pre employment, as a condition of hire | 39 2 208(1) | Applies to prospective employees |
| Random testing | 39 2 208(2) | Needs a documented random selection method and written policy covering it |
| Follow up testing | 39 2 208(3) | Only after a verified positive; limited to one year from the first follow up test |
| Reasonable suspicion | 39 2 208(4) | Supervisors must meet the training requirement in 49 CFR 382.603 |
| Post accident | 39 2 208(5) | Applies when the employer has reason to believe the employee caused or contributed to an accident with death, injury, or more than $1,500 in property damage |
Employee rights after a positive result
Montana's statute gives the tested employee two protections most other states leave to agency rule rather than statute. Under 39 2 209, the employer must give the employee a copy of the test report and, at the employee's request, pay for an additional test of the split sample at an independent lab chosen by the employee, unless that second test also comes back positive, in which case the employee pays. The employee must be given a chance to rebut or explain the result. Under 39 2 210, if the employee presents a reasonable medical explanation that the result was not caused by illegal drug use or alcohol, no adverse action can follow and the test results have to be removed from the employee's file and destroyed, except as the cannabis carve out in 16 12 108 allows. Confidentiality is reinforced again at 39 2 211, which bars test records and related communications from being used or disclosed outside a narrow set of legal proceedings or serious workplace accident inquiries.
Workers compensation: the intoxication presumption
Montana's workers compensation law has its own drug testing hook. Under 39 71 407(5), an injured employee is not eligible for comp benefits if alcohol or unprescribed drug use was the major contributing cause of the accident. The same subsection creates a rebuttable presumption: if an employee fails or refuses a post accident drug test administered under testing procedures that comply with Title 39, chapter 2 (the act described above), the law presumes drug use was the major contributing cause. That presumption does not apply if the employer knew about the employee's alcohol or drug use on the job and did nothing to stop it.
Marijuana gets a separate rule inside the same section. Under 39 71 407(6), a worker who holds a physician's written certification for a debilitating medical condition is not automatically disqualified from benefits for marijuana use; the employee loses eligibility only if marijuana use is proven to be the major contributing cause of the injury, and the insurer cannot be required to pay for marijuana related costs or to enhance benefits because of marijuana use. The statute still requires every eligibility determination to rest on objective medical findings, not assumption.
Unemployment insurance: the misconduct disqualification
Montana's unemployment statute, 39 51 2303, disqualifies a discharged worker from benefits for misconduct connected to the job, and subsection (3) names drug testing specifically: failing or refusing to take a drug test that violates an employer's written workplace drug policy is a disqualifying event, as long as the testing procedures comply with the federal standards and the Title 39, chapter 2 framework. There is one express carve out: this disqualification does not apply to a marijuana or marijuana product test given to someone who is a registered cardholder under Title 16, chapter 12, part 5, Montana's medical marijuana registry. In other words, a registered medical cardholder who fails or refuses a marijuana specific test cannot be disqualified from unemployment benefits on that basis alone, though the employer may still have grounds to discipline or terminate for a policy violation separate from the unemployment claim.
Cannabis status: adult use and medical, with no accommodation duty
Montana allows both adult use and medical marijuana, but the law that governs both, 16 12 108, is explicit that it does not create new employer obligations. Subsection (5) states that nothing in the marijuana chapter requires an employer to permit or accommodate marijuana use in the workplace, and nothing stops an employer from disciplining, declining to hire, or otherwise taking adverse action against someone for violating a workplace drug policy or for working while intoxicated by marijuana. The same subsection confirms there is no cause of action against an employer for wrongful discharge or discrimination arising solely from a marijuana policy violation. That means a Montana employer may generally still test for marijuana and act on a positive result under a written policy, subject to the two narrower statutory exceptions already described: the unemployment carve out for registered cardholders in 39 51 2303(3), and the workers compensation major contributing cause standard for certified patients in 39 71 407(6). Because cannabis law changes and interacts differently with federal contracts, safety sensitive roles, and local ordinances, confirm current status directly against the state's own code page before finalizing a policy, and consider asking counsel to review any policy that treats registered cardholders differently from other applicants or employees.
Public employees and drug free workplace rules
Montana does not run a separate statewide drug free workplace certification program comparable to some other states' insurance premium discount programs. Public sector employers and political subdivisions are covered as "employers" under the Workforce Drug and Alcohol Testing Act in the same way private employers are, through the definition in 39 2 206, which expressly includes the governing body of a local government. Where a public employer's workforce includes DOT regulated positions such as transit, aviation, or commercial driving, the federal testing rules below apply on top of, not instead of, the state framework.
DOT preemption: when federal rules take over
If an employee's job is covered by federal transportation testing rules, such as commercial driving under FMCSA, aviation under FAA, rail under FRA, or pipeline work under PHMSA, the collection, testing, and MRO procedures in 49 CFR Part 40 control the mechanics of the test itself, and Montana's own statute recognizes this by requiring qualified testing programs to conform to Part 40 for covered samples. States cannot weaken the federal testing procedure for safety sensitive transportation employees, but state law can still govern side issues federal rules leave open, such as unemployment eligibility after a refusal or workers compensation treatment of a positive result. Employers running a mixed workforce, some DOT covered and some not, generally need two documented policies, or one policy that clearly marks which sections apply to which group, so a supervisor is not applying a non DOT reasonable suspicion standard to a DOT covered driver by mistake.
For background on building a written policy that holds up across both frameworks, see our guide to drug testing laws by state, and for the cannabis specific side of policy design, see marijuana legalization and workplace drug testing. Employers building or updating a Montana compliant program can review drug test cups sized for a qualified testing program's panel needs.
Frequently asked questions
Does Montana require a written drug testing policy
Yes, for any employer relying on the Workforce Drug and Alcohol Testing Act's protections. Section 39 2 207 requires a written policy available to employees at least 60 days before it takes effect or changes, covering sanctions, education, standards of conduct, assistance programs, and dispute procedures.
Can a Montana employer randomly test employees
Yes, if the written policy includes a documented random selection method, either an employer set testing date for all employees or a scientifically valid random selection process administered directly or through a third party, as described in 39 2 208(2).
What happens if an employee refuses a post accident drug test in Montana
Under 39 71 407(5), a refusal that follows testing procedures compliant with Title 39, chapter 2 creates a rebuttable presumption that drug use was the major contributing cause of the accident, which can affect workers compensation eligibility. Under 39 51 2303(3), the same kind of refusal is generally a disqualifying event for unemployment benefits, unless the test was a marijuana test given to a registered medical cardholder.
Does Montana's marijuana law protect employees from being tested
No. 16 12 108(5) states the marijuana chapter does not require an employer to accommodate marijuana use and does not limit an employer's ability to discipline or take adverse action for a workplace drug policy violation or on the job intoxication. The law provides two narrower protections elsewhere: a workers compensation standard for certified patients under 39 71 407(6), and an unemployment carve out for registered cardholders under 39 51 2303(3).
Do DOT testing rules override Montana state law
For employees in safety sensitive transportation roles, the collection and testing procedures of 49 CFR Part 40 control, and Montana's own statute requires qualified testing programs to conform to Part 40 for covered samples. State law continues to govern related questions, such as unemployment and workers compensation outcomes, that federal transportation rules do not address.
Is independent contractor testing covered by this statute
No. The definition of "employee" in 39 2 206 expressly excludes independent contractors, so the Workforce Drug and Alcohol Testing Act's procedural protections do not apply to a true independent contractor relationship. Employers should confirm worker classification carefully before relying on this exclusion.
This article is general compliance information, not legal advice. Montana law changes, and testing requirements vary by job classification and funding source, so confirm current statutory text with the Montana Legislature's code site or employment counsel before adopting or enforcing a policy.
