Delaware drug testing law is located in the following sections of the Delaware Code Annotated.

Nursing Homes-Title 16, Chapter 11 of the Delaware Code Annotated

• Sec. 1142. Nursing homes - Mandatory drug testing.

• Sec. 1146. Drug testing

• Sec. 2708. School bus driver's qualifications.

(a) No employer who operates a nursing home, management company, other business entity contracted to operate a nursing home, or agency that refers employees to work in a nursing home may hire any applicant, as defined in Sec. 1141 of this title, without first obtaining the results of such applicant's mandatory drug screening.

(b) All applicants, as defined in Sec. 1141 of this title, shall submit to mandatory drug testing, as specified by regulations promulgated by DHSS.

(c) DHSS shall promulgate regulations, regarding the pre-employment testing of all applicants, for use of the following illegal drugs:

(1) Marijuana/cannabis;

(2) Cocaine;

(3) Opiates;

(4) Phencyclidine ("PCP");

(5) Amphetamines;

(6) Any other illegal drug specified by DHSS, pursuant to regulations promulgated pursuant to this section.

(d) Conditional hire. Notwithstanding the provisions of subsection (b) of this section, when exigent circumstances exist, and an employer must fill a position in order to maintain the required level of service, the employer may hire an applicant on a conditional basis when the employer receives evidence that the applicant has actually had the appropriate drug screening. The final employment of an applicant pursuant to this subsection shall be contingent upon receipt of the results of the drug screening. In addition, all persons hired pursuant to Sec. 1141 of this title shall be informed in writing and shall acknowledge, in writing, that his/her results have been requested. Under no circumstances shall an applicant hired on a conditional basis pursuant to this subsection be employed on a conditional basis for more than 2 months.

(e) An agency, including but not limited to temporary agencies, must provide the drug screening results it receives regarding a person referred to work in a nursing home to that particular nursing home so that the facility is better able to make an informed decision whether to accept the referral.

(f) Mandatory drug testing. The employer shall provide to DHSS copies of the results of any drug screening required by this section pursuant to regulation.

(g) Any applicant or employer who fails to comply with the requirements of this section shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

Home Health Agencies-Title 16, Chapter 11

Sec. 1146. Drug testing.

(a) No employer who operates a home health agency or a management company or other business entity that contracts to provide services on behalf of a home health agency, or agency that refers employees to work in a home health agency or a management company or other business entity that contracts to provide services on behalf of a home health agency, may hire any applicant, as defined in Sec. 1145 of this title, without first obtaining the results of such applicant's mandatory drug screening.

(b) All applicants, as defined in Sec. 1145 of this title, with the exception of self-employed healthcare givers seeking employment from a private individual to work in that capacity in a private residence on a private basis, shall submit to mandatory drug testing, as specified by regulations promulgated by DHSS. The requirement for drug tests for healthcare givers seeking employment in a private residence on a private basis is left to the discretion of the employer. Costs for such tests are borne by the employer or the applicant.

(c) DHSS shall promulgate regulations regarding the preemployment testing of all applicants for use of the following illegal drugs:

(1) Marijuana/cannabis;

(2) Cocaine;

(3) Opiates;

(4) Phencyclidine ("PCP");

(5) Amphetamines;

(6) Any other illegal drug specified by DHSS, pursuant to regulations promulgated pursuant to this section.

(d) Conditional hire. Notwithstanding the provisions of subsection (b) of this section, when exigent circumstances exist and an employer must fill a position in order to maintain the required level of service, the employer may hire an applicant on a conditional basis when the employer receives evidence that the applicant has actually had the appropriate drug screening. The final employment of an applicant pursuant to this subsection shall be contingent upon receipt of the results of the drug screening. In addition, all persons hired pursuant to Sec. 1145 of this title shall be informed in writing and shall acknowledge in writing that his or her results have been requested. Under no circumstances shall an applicant hired on a conditional basis pursuant to this subsection be employed on a conditional basis for more than 2 months. The provisions of this subsection regarding a conditional hire shall not apply to private individuals seeking to hire a self-employed healthcare giver to work in that capacity in a private residence.

(e) An agency, including but not limited to temporary agencies, must provide the drug screening results it receives regarding a person referred to work in a home health agency or a management company or other business entity that contracts to provide services on behalf of a home health agency to that particular home health agency, management company or business entity so that the home health agency, management company or business entity is better able to make an informed decision whether to accept the referral.

(f) The employer shall provide to DHSS copies of the results of any drug screening required by this section as directed by regulations promulgated by DHSS pursuant to this statute.

(g) Any applicant or employer who fails to comply with the requirements of this section shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

School bus drivers-Title 21, Chapter 2708

Sec. 2708. School bus driver's qualifications.

(a) No person shall drive, nor shall any contractor or public, parochial or private school, permit any person to drive a school bus within the State unless such driver has qualified for a commercial driver's license (CDL) under Chapter 26 of this title, and a school bus endorsement under this chapter, and other pertinent rules and regulations of the Department. Furthermore, except when in possession of a CDL permit and undergoing training or evaluation and accompanied by a certified Delaware School Bus Driver Trainer, school bus drivers shall at all times, while operating or in control of a school bus have in their immediate possession the following:

(1) A properly endorsed and classified Delaware CDL license, with a P (passenger) and S (school bus) endorsement. In exceptional circumstances, the Department of Public Instruction (DPI) may request that the Department issue a 45-day temporary S endorsement to allow a driver to drive upon completion of all requirements except the 12 hours of classroom training. Out-of-state school bus drivers shall comply with Sec. 2709 of this title.

(2) A physical examination certification indicating a valid and approved State Board of Education physical exam completed within the last year.

(b) To qualify for an S (school bus) endorsement an applicant must meet all the following requirements:

(1) Be at least 18 years of age with 1 year of driving experience.

(2) Have qualified for a CDL license with P (passenger) endorsement.

(3) Show completion of a course of training with specific course content as determined by the State Board of Education. Such course shall contain as a minimum 12 hours of classroom training and 6 hours of training aboard a school bus with a certified Delaware School Bus Driver Trainer. Training on the school bus must include 4 hours of actual driving, 2 of which must be with students on the bus.

(4) Pass a road test in a school bus administered by the Department. This test may be waived by the Department if the driver has already obtained a P endorsement on the CDL license.

(5) Not have more than 5 points on the applicant's driving record at the time of application.

(6) Not have had the applicant's license suspended, revoked or disqualified in this State or any other jurisdiction for moving violations in the last 5 years.

(7) Never have been convicted of the manufacture, delivery or possession of a controlled substance or a counterfeit controlled substance classified as such in Schedule I, II, III, IV or V of Chapter 47 of Title 16 in this State or any other jurisdiction.

(8) Never have been convicted of a felony in this State or any other jurisdiction within the last 5 years.

(9) Never have been convicted of a crime against a child in this State or any other jurisdiction.

(10) Submit to a drug test, to be administered pursuant to the rules and regulations of the Department of Education, the results of which must be negative for controlled substances as defined by the provisions of 49 U.S.C. Section 31306 and the implementing regulations issued by the Secretary of Transportation pursuant thereto unless the controlled substances have been ingested pursuant to a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice. Anyone testing positive to the drug test required in this paragraph shall have the right to request and pay for further analysis of their split sample, pursuant to the rules and regulations of the Department of Education, to determine whether the result was a false positive or the controlled substance was ingested pursuant to a valid prescription or order of a practitioner wile acting in the course of the practitioner's practice. Refusal to submit to testing, which shall include the provision of a substituted or adulterated test sample, shall be deemed to be a positive test result under this Subsection.

(c) Any time a license with a school bus endorsement is suspended, revoked or disqualified for moving violations, or the driver exceeds 8 points for moving violations, the school bus endorsement shall become invalid, and the endorsement shall be removed from the license.

(d) Renewal of the school bus endorsement shall be as required for other licenses.

(e) The Department shall provide school bus driver records at no charge to DPI or to companies contracted to DPI for school bus services.

2910. Drug and alcohol testing, Public School bus drivers.

(a) In order to coordinate State and federal efforts to insure the safety of school children, the Department of Education is authorized to contract for a program of drug and alcohol testing services necessary to enable public school districts, charter schools, and any person or entity that contracts with a school district or charter school to provide transportation for State public school students, to comply with such drug and alcohol testing requirements applicable to Delaware public school bus drivers as are now, or may hereafter be, imposed by federal law. Testing services shall be provided at no cost to the bus driver's employer. The nature and extent of testing services to be provided shall be at the discretion of the Department of Education, but shall include pre-employment, reasonable suspicion, random and post-accident testing, for alcohol and controlled substances pursuant to the provisions of 49 U.S.C. Section 31306 and the implementing regulations issued by the Secretary of Transportation of the United States pursuant thereto, as the same may from time to time subsequently be amended. In no event, shall the Department of Education be responsible for the provision of any post-testing services either to a bus driver or to the driver's employer except to cause the results of such testing to be provided to the driver and to the driver's employer.

(b) Nothing contained herein shall be deemed to impose any additional obligation upon the employer of a public school bus driver beyond those obligations otherwise imposed upon such employer by State or federal law, or pursuant to rules and regulations promulgated in accordance with Subsection (d) of this Section.

(c) No person shall operate a public school bus while not in compliance with the provisions of all federal drug and alcohol testing requirements relevant to the drivers of Delaware public school buses and any regulations adopted by the Department of Education pursuant to this Section.

(d) The Department of Education is authorized to promulgate rules and regulations to implement the provisions of this Section including, without limitation, rules and regulations which:

(1) Require all employers of public school bus drivers in this State to participate in the testing program contracted for by the Department; and

(2) Require public school districts, charter schools and the employers of public school bus drivers to follow such procedures and to maintain such records as the Department deems necessary to insure that public school bus drivers are being tested in accordance with the provisions of federal drug and alcohol testing requirements.

Department of Corrections-Title 29, Chapter 89

Sec. 8920. Purpose.

The purpose of this subchapter is to establish a mandatory drug testing program for certain Department of Correction employees who hold positions that are directly related to public safety and the security of our correctional institutions and probation operations.

Sec. 8921. Definitions.
As used in this subchapter unless the context otherwise requires:

(1) "Department technical representative" means an employee of the Department designated by the Commissioner to ensure compliance with the requirements of this subchapter and whose duties include, but are not limited to, the following:

a. Scheduling of urine specimen collections;

b. Designation of collection sites;

c. Assuring the integrity of collection procedures and sites;

d. Assuring the integrity of testing and specimen retention procedures;

e. Reviewing the data and reports; and

f. Acting as the Commissioner's contact person for the testing for illegal drugs.

(2) "Applicant" means any person who is seeking employment with the Department for a security sensitive position.

(3) "Applicant-employee" means an employee of the State who is an applicant for a security sensitive position in the Department.

(4) "Employee" means a person with whom the State has an employer-employee relationship.

(5) "Security sensitive position" means any of the following positions in the Department:

a. The Commissioner;

b. Bureau Chiefs;

c. Security positions;

d. Employees of the Department who are required or permitted to carry a firearm;

e. Department employees who have a significant degree of responsibility for the safety of others and whose impaired performance or undue influence of that Department employee could potentially result in death or injury to employees or others; or

f. Department employees as otherwise designated by the Department pursuant to its policies and procedures.

(6) "Random Testing" means tests based upon an appropriate random sampling technique, with significant samples of Department employees in security sensitive positions being tested on a periodic basis with all such employees having a reasonably equal chance of being tested.

(7) "Incident Triggered Testing" means any incident involving death or serious physical injury to a Department employee, loss or significant damage to Department property, escape of an inmate or detentioner where the security sensitive employee was directly involved in the incident.

(8) "Reasonable suspicion" means when the Department, acting through its supervisory personnel, has reasonable suspicion that the appearance or conduct of Department employees in a security sensitive position is indicative of their having being impaired by an illegal drug.

Sec. 8922. Drug testing required.

(a) Random testing. All Department employees in security sensitive positions shall be subject to random testing for the illegal use of drugs.

(b) Pre-employment testing. The Department shall test all security sensitive applicants and applicant employees for the illegal use of drugs.

(c) Incident triggered testing. All Department employees in security sensitive positions shall be subject to incident triggered testing.

(d) Reasonable suspicion testing. The Department may, acting through its supervisory personnel, conduct a drug test based on a reasonable suspicion that the appearance or conduct of the Department employee in a security sensitive position is indicative of being impaired by an illegal drug. The questioned conduct or appearance should be witnessed and must be documented in writing by a supervisor where practicable.

(e) Nothing in this section shall be construed to limit the Department's authority pursuant to any other statute, regulation, policy, procedure, contract or other source of authority to test any Department employee for drugs.

Sec. 8923. Drugs to be screened.

(a) The illegal drugs that shall be screened include, but are not limited to, the following:

(1) Marijuana/cannabis;

(2) Cocaine;

(3) Opiates;

(4) Phencyclidine ("PCP"); and

(5) Amphetamines.

(b) The Department technical representative may submit to the Commissioner a written request for approval to screen for an illegal drug or controlled substance other than those listed under subsection (a) of this section. If the Commissioner approves the request, the Department technical representative shall notify all Department employees in security sensitive positions of the addition of that drug to the list of those to be screened.

Sec. 8924. Arrest notification required.

Any security sensitive employee arrested for an alleged violation of Chapter 47 of Title 16 shall report the arrest to the Department on the employee's next scheduled work day, or within 1 week, whichever is earlier. Failure to report the arrest shall result in disciplinary action up to and including dismissal.

Sec. 8925. Policies and procedures.

The Department shall promulgate policies and procedures for the full implementation of the subchapter.

Sec. 8926. Correctional Officer Education Assistance Fund.

(a) Any correctional officer holding the rank of Captain or below may avail themselves of the provisions of this act to prepay the tuition costs for higher education related to their position.

(b) The classes will be 100% prepaid by the Department upon application to the Human Resources Director of the Department prior to commencement of classes at a college or university within the State for classes related to corrections, public safety, criminal justice, psychology or sociology or related fields. Related fields shall include any courses necessary to complete a degree program in Criminal Justice, Corrections, Public Safety, Psychology or Sociology. Correctional officers who work in the food service, mechanical or building trades and maintenance area shall be eligible for prepayment for classes that relate to their field or trade. The officer must maintain a C average or better in the classes taken to remain eligible for this program.

(c) The Department shall take the funds appropriated for this section in each fiscal year and allocate them as follows:

40% for the fall semester;
40% for the spring semester; and
20% for the summer semester.

The Department shall establish a deadline date for applying for said funds. If there are more applications than funds for any semester, then the funds shall be prorated between the applications. If there are less funding applications than funds available, excess funds shall be rolled over to the next semester.

(d) An officer who has received funding pursuant to this section but who is terminated from the Department for cause prior to completion of current vouchered courses or who otherwise fails to comply with any requirement of this section shall immediately become ineligible to receive education benefits pursuant to this section and shall repay the Department for all tuition and fee funding previously extended to the officer, including interest, on a pro rata basis from the time of termination or noncompliance. The Commissioner shall adopt appropriate procedures to determine the amount of repayment and the method of collection due by the officer pursuant to this subsection. If an employee voluntarily leaves the Department prior to completion of funded courses, the officer will not be required to repay previously funded tuition but will have to repay the current quarter or semester's tuition.