Drug Testing at Work

Many job applicants and employees get asked to take a drug test at least once. Some employers believe employee drug use results in decreased productivity and workplace accidents. Many businesses adopt pre-employment and post-hiring drug testing procedures to avoid these problems.

This article covers the legality of workplace drug testing. It also touches on employee rights during the drug testing process.

Pre-Employment Drug Testing

Many states have laws that regulate pre-employment drug testing. These laws vary significantly from state to state.

Private employers may demand prospective employees to pass a drug test as a condition of employment. Applicants have the right to refuse to take a drug test. But, such a refusal usually results in the employer withdrawing the job offer. Employers don't have to justify pre-employment drug testing beyond the desire for a drug-free workplace.

In workplaces with unions, the employer and the union decide on pre-employment drug testing. Whether a company with a union can ask job applicants to take a drug test depends on whether it hires from a special union hiring hall. It also depends on the terms of the collective bargaining agreement. If you are applying for a job in a union and have questions about drug testing, it's a good idea to contact the union for more information.

Drug Testing During Employment

Many state laws limit the circumstances under which an employer can drug test existing employees. These laws attempt to balance employers' legitimate interests with employees' privacy.

The circumstances when testing is allowed may include:

• Random testing, sometimes limited to employees in safety-sensitive positions
• Periodic testing of all employees at specified times during the year
• Reasonable suspicion testing when the employer has a reasonable basis to believe the employee is using drugs
• Post-accident testing when the employee has been in a workplace accident
• Return to duty/follow-up testing when an employee returns to work after completing a drug rehabilitation program

The specific testing an employer conducts depends on the state and the employer's drug testing policy.

Federal and state laws force employers in some industries to test workers in safety-sensitive positions. Common industries affected by these requirements are transportation and construction. Affected positions include airline pilots, commercial drivers, and heavy equipment operators.

Federal Drug Testing Laws

Federal drug testing laws include various regulations to establish and maintain safe workplaces. The Americans with Disabilities Act (ADA) ensures that employee drug testing considers the rights of people with disabilities. The Department of Transportation (DOT) regulates safety-sensitive positions, like truck drivers. It also mandates routine drug testing to uphold employee safety. The Drug-Free Workplace Act encourages employers, particularly those with federal contracts, to install drug-free workplace programs. These programs often incorporate employee assistance programs. The programs support people grappling with substance abuse issues.

Invasion of Privacy

Generally, the courts have ruled that pre-employment testing of all applicants is legal. This is true regardless of the position they are trying to fill. Courts have also said testing current employees is legal if the employer has a legitimate reason for the test.

Legitimate reasons include:

1. Employees in safety-sensitive positions
2. There is reasonable suspicion that the employee is using illicit drugs

In these cases, courts often find the employer's interests outweigh the employee's privacy concerns.

This shows in the federal and state statutes that require or permit drug testing employees. In general, the courts have upheld these rules against privacy challenges.

Medical Marijuana

Historically, cannabis was an illicit drug. Employers with drug testing policies routinely screened for it. But as of February 2024, 38 states and the District of Columbia allowed the use of medical marijuana on some basis.

In many states, an employer can still test for marijuana and take action based on a positive result. This is the case even if medical or recreational use of marijuana is legal under state law. In states where medical marijuana is legal, an employer can still test for it. But the employer cannot act against an employee with a valid prescription.

Federal law does not recognize the legality of medical or recreational marijuana. Under federal law, an employee tested for marijuana enjoys no protection. An employer can respond to a positive test for marijuana in the same way it would react to a positive test for any other illegal drug.

Laws vary from state to state. If you use medical or recreational marijuana, you should find out whether such use is OK in the position you seek.

State Drug Testing Laws

The following is a brief sampling of state drug testing laws:

• California: The state allows for pre-employment drug testing. As of January 2024, an employer can't fire or discriminate against an employee for the legal use of marijuana outside of work hours.
• Maine: There are specific regulations that govern drug testing in the state. If an employer wants to start a drug testing program, it must create a drug-free workplace policy. It must then have the policy approved by the Maine Department of Labor Bureau of Labor Standards.
• New York: There is no generally applicable drug testing law. An employer can't fire or discriminate against an employee for the legal use of marijuana outside of work hours.

Learn More About Drug Testing at Work in Your State from a Local Attorney

An employment issue involving drug testing can be highly emotional. An employment law attorney can help you assert your rights by examining the details of your situation. Contact a local employment attorney to learn how they can help you keep your job and privacy.