Understanding Drug Testing Regulations - A guide for employers and employees

In 2026, drug testing remains a critical pillar of workplace safety. However, for organizations operating in Guam, the regulatory landscape represents a unique blend of federal mandates and local statutes.

Navigating the overlap between USDOT 49 CFR Part 40, HHS Guidelines, and Guam Coded Law requires a clear understanding of where these rules meet and where they diverge.

 

The Federal Framework: DOT and HHS

The U.S. Department of Transportation (DOT) 49 CFR Part 40 serves as the industry standard for how testing is performed. It ensures fairness and accuracy through strict "Chain of Custody" procedures that protect both employers and employees throughout the testing process.

The Health and Human Services (HHS) guidelines provide the scientific backing, establishing the "cut-off" levels for what constitutes a positive result. These standards ensure consistency across laboratories nationwide.

2026 Updates. As of this year, the federal panel has officially expanded to include fentanyl, reflecting the ongoing opioid crisis affecting communities across the nation. Additionally, oral fluid (saliva) testing is now fully integrated as a certified alternative to urine testing, offering a shorter window of detection that is ideal for post-accident scenarios.

The Local Context: Guam Coded Law

Guam's regulations, particularly Title 10 GCA Chapter 75, govern testing for Government of Guam (GovGuam) employees. While private employers have more flexibility, they often mirror these standards to limit liability and maintain consistency in their workforce policies.

The most significant local factor is the legalization of cannabis. While Guam law permits adult use, it does not grant a "right" to be impaired at work. Public sector "Testing Designated Positions" (TDPs) and safety-sensitive private roles remain strictly regulated, maintaining workplace safety as the paramount concern.

Where Rules Align and Diverge

Understanding the relationship between federal and local regulations is essential for compliance. Both Guam and DOT standards rely on HHS-certified laboratories and Medical Review Officers (MROs) to ensure accurate results and protect employee privacy.

Both frameworks also focus on high-risk drugs including cocaine, amphetamines, and opioids, and both are moving toward including fentanyl in their 2026 testing panels.

However, significant differences exist. DOT regulations are strictly procedural, focusing on how tests must be conducted, while Guam law emphasizes who must be tested, particularly GovGuam staff in designated positions.

The most notable divergence concerns cannabis: DOT maintains a zero-tolerance policy regardless of state or territorial law, while Guam law allows local use. Despite this legalization, employers may still prohibit cannabis for safety-sensitive roles.

Additionally, federal rules have fully embraced oral fluid testing, and Guam's private sector is adopting this methodology faster than the public sector.

Employer Guidance for Compliance and Navigation

Staying compliant in this dual regulatory environment requires proactive policy management. Organizations should update their written policies to ensure their 2026 documentation explicitly mentions fentanyl and clarifies their stance on cannabis.

Federal contractors operating on the island should note that federal law (HHS) typically supersedes local cannabis protections.

Prioritizing "reasonable suspicion" training is equally important. Because cannabis can remain in the system long after its effects wear off, a positive test doesn't always prove current impairment.

Supervisors should be trained to document physical and behavioral cues such as slurred speech or lack of coordination to support testing decisions.

Organizations should always utilize a Medical Review Officer (MRO), ensuring that a licensed physician reviews positive results. This practice protects employee privacy regarding legitimate prescriptions and shields the employer from wrongful termination claims.

Finally, employers must clearly define which roles in their organization qualify as "safety sensitive." Under Guam's evolving legal landscape, these positions have the strongest legal standing for strict testing requirements.

Guidance for Employees

Employees who take legally prescribed opioids or amphetamines should keep their prescriptions current and be prepared to disclose them to the MRO privately if a positive test occurs. This confidential process protects your privacy while allowing legitimate medication use.

Understanding whether your position qualifies as "safety-sensitive" is crucial. If your job involves driving a company vehicle or operating heavy machinery in Guam, you are likely held to the stricter DOT or public safety standards, regardless of local cannabis laws.

Looking Ahead

For everyone navigating this landscape, it's important to understand that drug testing laws are subject to change through court rulings and legislative updates.

Always consult with a legal professional or a certified Third-Party Administrator (TPA) when enacting or drafting new corporate policies to ensure full compliance with both federal and territorial requirements.

Originally published 1/27/26 on guampdn.com