Drug Testing at Work

Facing a workplace drug test can be stressful and concerning. Even if you have been with your company for years, going through drug testing may feel invasive. State laws are rapidly changing, especially for marijuana, and federal prohibitions remain in place. Understanding your rights related to workplace drug testing is crucial.

This article outlines what you need to know about workplace drug testing. It answers some important questions, such as:

• Are there different requirements for current employees and job applicants?
• When can my employer legally require drug testing?
• How can I protect my rights?

If you believe your employer violated your rights during drug testing, contact an employment attorney. They can help you understand your legal options and protect your rights.

Differences Between Current Employee and Pre-Employment Drug Testing

This article focuses on current employees. However, it is worth noting that pre-employment testing follows different rules. Many companies require pre-employment drug testing as a condition of a job offer.

States typically give employers more discretion with drug testing before hiring. Current employee testing usually requires reasonable suspicion. It’s also generally allowed in specific scenarios, such as after a workplace accident.

When Your Employer Can Legally Require Drug Testing

Employees usually have stronger protections against arbitrary drug testing than job applicants. Employers often need one of these specific justifications before requiring a drug test:

Reasonable Suspicion Testing

The testing usually must be based on reasonable suspicion. Employers need to have observable evidence, such as:

• Physical impairment
• Unusual behavior patterns
• Slurred speech
• Coordination problems

Employers can’t conduct a drug screening based on rumors or speculation of drug use.

Post-Accident Testing

Employers may conduct a drug test if you are involved in a workplace accident. Both illegal drugs and alcohol use may be tested in these situations. The purpose is to check whether you are under the influence of a controlled substance that contributed to the accident.

Occupational Safety and Health Administration (OSHA) rules protect against retaliation for reporting workplace accidents. Drug testing must only be conducted to ensure safety, not to penalize an employee.

Return-to-Duty Testing

Return-to-duty testing is a drug test completed after an employee has been on leave. For example, after an employee completes substance abuse treatment. They can also ask you to undergo a drug test after disciplinary leave. For example, a suspension for a drug policy violation.

These drug tests often act as a follow-up check for continued drug abuse to ensure workplace safety.

Random Testing

State and federal laws control when and how employers can conduct random drug testing.

The U.S. Department of Transportation (DOT) requires random drug/alcohol testing for safety-sensitive transportation positions. This includes employees in the following fields:

• Aviation
• Trucking
• Railroads
• Mass transit
• Pipelines

States also generally allow random drug testing for safety-sensitive roles. Some also allow private sector employers to conduct random testing if employees receive notice. State law might even dictate how random testees are chosen.

Can Your Employer Test You Randomly Without Suspicion?

It depends on your state’s laws and your job position. Many states require employers to have reasonable suspicion before testing current employees.

However, state regulations vary significantly. Some states permit private employers to conduct random testing without reasonable suspicion. The only condition is that the employer should provide advance notice to employees and apply the policy consistently.

Courts have generally established a rule for positions that pose serious risks of human injury or property damage. Employers do not need individualized suspicion to conduct random drug tests. It explains why random testing is common in transportation, healthcare, and industrial settings. If your employer does implement testing, they must apply the policies consistently.

Your Drug Testing Rights

When employers conduct drug testing, you maintain important legal protections throughout the process. This includes the following:

• Notice: You should receive a clear notification about your company’s drug testing policy. They should provide this notification before implementing the drug testing.
• Safety and privacy: You have the right to a clean and private place to provide necessary samples for drug testing.
• Confidentiality: Your test results must remain private. Only authorized individuals can access your test results.
• Verified results: Certified laboratories should process your samples properly, following validated protocols. Most states require a confirmatory test.
• Opportunity to explain: Prescribed medications can cause unexpected positive results. You must be given the opportunity to provide medical documentation to explain a positive drug test.

Federal Laws on Employee Drug Testing

Several federal frameworks establish baseline protections when you face workplace drug testing:

• The Drug-Free Workplace Act of 1988 requires federal contractors to maintain drug-free workplaces. However, it does not specifically mandate testing individual employees.
• Title VII civil rights protections prohibit the discriminatory implementation of testing programs. The law prohibits discrimination on the basis of race, gender, national origin, or other protected characteristics.
• The Americans with Disabilities Act (ADA) protects people with disabilities. The ADA extends this protection to people recovering from a substance use disorder.
• The Family and Medical Leave Act (FMLA) qualifies substance abuse as a "serious health condition." Thus, the FMLA allows eligible employees to take unpaid leave for substance abuse treatment. Employers cannot terminate employees for taking FMLA leave for treatment. However, they may still enforce established substance abuse policies communicated to all employees.

Types of Drug Tests Employers May Use

Understanding the types of drug tests your employer might use can help you better prepare.

Urine Testing

Urine testing is the most common method, where a urine sample is analyzed for the presence of drugs. Most standard employee drug testing programs use a urine test. This method is cost-effective and can detect recent drug use.

Oral Fluid Testing

Oral fluid tests collect saliva through a swab. This method can detect very recent drug use, typically within the past 24-48 hours. This less invasive method is becoming increasingly popular in workplace testing.

Blood Tests

Blood tests are more invasive but provide the most accurate results for current impairment. These are typically used in post-accident scenarios. It determines if someone is currently under the influence of alcohol or other illegal substances.

Understanding Drug Test Results

What happens with your drug test results after you participate in your workplace drug testing program?

• Negative results indicate the drug test did not detect any prohibited substances above the thresholds.
• A positive drug test indicates the presence of prohibited substances. However, this doesn’t always mean disciplinary action will follow.

If you have a positive test result, a medical review officer (MRO) reviews the results. They conduct a review before they report to your employer. The MRO will also contact you to determine if there’s a legitimate medical explanation. This may include the presence of prescription medication.

Get Legal Help with Drug Testing Issues

If you have concerns or questions about drug testing at your workplace, seek legal advice. An employment law attorney can evaluate your specific situation. They can explain how your state’s laws apply to your case and help determine if your employer violated your rights. You can also visit your state’s Department of Labor website to learn more. 

Given how important state law is to employment drug testing issues, it’s important to find an advocate who is well-versed in the laws of your state. FindLaw’s directory of employment law attorneys who focus on employee rights can help you easily find a lawyer in your area with the right experience and knowledge.