Drug testing in 2026: what Texas employers can test for, how to write the policy, and where it goes wrong

Texas employers can still drug test. That has not changed. What has changed is almost everything around the test: what counts as “legal” marijuana, what is sold at the corner store, which drugs the federal panels look for, and how samples can be collected. A policy written five years ago may no longer say what you mean, and a test handled casually can fall apart the first time someone challenges it.

What Texas law requires, and what it does not

Texas has no comprehensive drug testing statute for private employers. Within the limits below, a private employer may decide whether, when, and whom to test, and in an at-will state a positive result or a refusal can generally support a decision. The guardrails come mostly from your own policy and from federal law.

• A written policy is required for many employers. Texas employers with 15 or more employees that carry workers’ compensation coverage must adopt a policy designed to eliminate drug abuse and its effects in the workplace, and give it to employees.
• Medical cannabis carries no job protection in Texas. The state’s Compassionate Use Program, expanded in 2025, lets qualifying patients use low-THC cannabis, but nothing in it requires an employer to tolerate a positive test.
• Your own policy becomes the rule. Courts, arbitrators, and the Texas Workforce Commission measure what you did against what you wrote. Testing someone outside the policy, or treating two positives differently, is where most problems start.

The federal rules that sit on top

• DOT-regulated jobs. Commercial drivers and other safety-sensitive transportation workers must be tested under 49 C.F.R. part 40, with set procedures for collection, certified labs, medical review, and return-to-duty, plus queries of the FMCSA Drug and Alcohol Clearinghouse for drivers.
• The ADA. A test for illegal drugs is not a medical examination, so it can be given before or after a job offer. Current illegal drug users are not protected, but people in recovery are, and so are employees taking lawful prescriptions. Alcohol tests are treated as medical examinations, with tighter rules.
• OSHA. Employers may not use testing to discourage injury reporting. Post-accident testing is fine when there is a reasonable basis to think drug use could have contributed. A blanket rule that tests everyone who reports any injury invites a retaliation claim.
• Unions. In a unionized workplace, adopting or changing a testing program is generally a mandatory subject of bargaining.
• Federal contractors and grantees. The Drug-Free Workplace Act requires a policy statement, an awareness program, and reporting of certain convictions for covered contracts and grants.

What is different in 2026

Marijuana is partly rescheduled, and that changes less than people think

In April 2026 the DEA moved FDA-approved marijuana products and marijuana held under a state medical license to Schedule III, and a hearing on rescheduling marijuana more broadly is still pending. For a Texas private employer, none of that creates a right to use marijuana or a duty to accommodate it. DOT testing still includes marijuana, and any change there would come through federal testing rules, not the scheduling order alone. What it does create is confusion, so your policy should say plainly what a positive THC result means.

Hemp THC is still on the shelves, and it still tests positive

Delta-8, THCA, and other hemp-derived THC products have been sold widely in Texas. A statewide ban was vetoed in 2025, and new state rules in 2026 tightened what can be sold, with litigation still under way. For drug testing, the chemistry matters more than the label: most of these products can produce a positive THC result. Decide now whether your policy treats any THC positive the same way regardless of source, and say so, so an employee’s “it was legal hemp” is answered by the policy rather than argued case by case.

Fentanyl is on the federal panels

HHS added fentanyl to the federal workplace testing panels in 2025, and DOT proposed doing the same for transportation testing. Many standard non-DOT panels still do not look for it. Ask your vendor what your panel includes, and decide whether your safety-sensitive roles need more than the default.

New ways to collect

Oral fluid testing is authorized for DOT, but it is not practically available until HHS certifies the required laboratories, so check the current status before relying on it. Outside DOT, employers can choose urine, oral fluid, or hair. They detect different things over different windows: oral fluid generally reflects recent use, urine a few days, and hair months. Pick the method that matches the question you are trying to answer, and use it consistently.

What a defensible policy covers

1. Who is covered, and which positions are safety-sensitive.
2. When testing happens: pre-employment, reasonable suspicion, post-accident with a reasonable basis, random testing for safety-sensitive roles if you use it, and return-to-duty and follow-up testing.
3. What is tested, the cutoffs, and how THC from any source is treated.
4. How samples are handled: a qualified collector, chain-of-custody forms, a certified lab, and confirmation testing before any final decision on a non-negative screen.
5. Medical review. A medical review officer, not a supervisor, talks with the employee about prescriptions. Supervisors should never ask about medications.
6. What counts as a refusal, including tampering, leaving, or not showing up.
7. Consequences, applied the same way every time, and whether you offer an employee assistance program or a second chance.
8. Confidentiality of results, kept with medical records, not in the personnel file.
9. A signed acknowledgment and consent from each employee and applicant.

Reasonable suspicion is a skill

Reasonable suspicion testing is where supervisors most often get it wrong in both directions: ignoring obvious impairment, or sending someone for a test because of a hunch. Train supervisors to document specific, observable signs, such as slurred speech, the smell of alcohol or marijuana, unsteady movement, or an unexplained accident, to have a second trained person confirm when possible, and never to let a possibly impaired employee drive to the collection site.

Where drug testing goes wrong

• Inconsistency. Testing or disciplining one employee and not another in the same situation is how a drug testing decision becomes a discrimination claim.
• Acting on an instant screen. A rapid test is a screen, not a result. Wait for lab confirmation and medical review before a final decision.
• Weak paperwork. At a Texas Workforce Commission unemployment hearing, an employer usually needs to show the policy, that the employee knew it, a clean chain of custody, and the confirmed result. Missing any one of them can turn a clear case into a lost claim and a higher tax rate.
• Supervisors playing doctor. Questions about prescriptions or conditions belong to the medical review officer, and a disclosed condition may trigger the accommodation process.
• Blanket post-injury testing. It can look like punishment for reporting an injury. See Texas workers’ compensation for employers.
• An old policy. A policy that never mentions hemp, fentanyl, oral fluid, or remote workers is a policy someone will argue about.

How Crawford Law can help

Crawford Law would be happy to audit your system: the written policy, the panel and vendor, the forms and consent language, how supervisors decide on reasonable suspicion, and how results turn into decisions. Or bring a specific issue, such as a positive test from an employee who says it was hemp, a refusal, a prescription question, or an unemployment claim after a termination. Drug testing is part of the firm’s workplace practice, alongside background checks. Start with a free call.