Drug Testing at Work

Many job applicants and employees will be asked to take a drug test at least once in their careers. From the employer's perspective, illicit drug use by employees results in tardiness, absenteeism, decreased productivity, higher turnover, workplace accidents, workers' compensation claims, and liability claims. Many employers adopt pre-employment and post-hiring drug testing procedures to avoid these problems.

This article covers the legality of pre-employment and post-hiring screening for illicit drug use.

Pre-Employment Drug Testing

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

With few exceptions, private employers may require job applicants 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's withdrawal of the job offer. Unlike drug testing during employment (more on that below), pre-employment drug testing doesn't have to be justified by safety considerations or other job-specific concerns beyond the desire for a drug-free workplace.

In unionized workplaces, pre-employment drug testing is subject to bargaining between the employer and the union. Whether a unionized employer can conduct pre-employment drug testing depends on whether it hires from a union hiring hall or not, and whether the collective bargaining agreement allows or prohibits pre-employment drug testing. An applicant for a union job with questions about drug testing may want to contact the union for clarification.

Drug Testing During Employment

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

The circumstances under which testing may be allowed under these laws vary, and 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 involved 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 conducted by any particular employer will depend on the state and the employer's drug testing policy. The testing conducted by a unionized employer will depend on the relevant terms of the collective bargaining agreement between the employer and the union.

Federal and state regulations require that employers in certain industries engage in drug testing of employees in certain safety-sensitive positions. Common industries affected by these requirements are transportation and construction. Affected positions include airline pilots, commercial drivers, and heavy equipment operators.

Invasion of Privacy

Generally, the courts have ruled that pre-employment testing of all applicants is lawful, regardless of the position they are seeking to fill. Similarly, courts have upheld the testing of employees, at least in those cases in which the employer has a legitimate reason for conducting the test.

Reasons that have been found to be legitimate often involve: (1) employees in safety-sensitive positions; or (2) circumstances that give rise to a reasonable suspicion that the employee is using illicit drugs. In these cases, courts frequently find that the employer's interests outweigh the privacy concerns of the employee.

These basic principles are reflected in the federal and state statutes and regulations that require or permit drug testing of applicants or employees. In general, these statutes and regulations have been upheld by the courts against privacy challenges.

Of course, the mere fact that an employer is allowed to test for drugs does not mean that it can do anything it wants with the results. Unjustified disclosure of the results can constitute an invasion of privacy in some jurisdictions. And discipline or termination of an employee who tests positive for drugs might be unlawful discrimination if it is carried out because of the employee's protected status.

This area of the law is continually developing through new statutes, regulations, and court decisions. An employer or employee who wants to know whether any particular testing violates the employee's privacy rights should look into the laws that cover the employer, its business, its testing policy and practices, the employee's position, and the circumstances surrounding the testing. An experienced employment lawyer can provide helpful advice.

Medical Marijuana

Historically, marijuana was considered to be an illicit drug, and employers with drug testing policies routinely screened for it. But as of November 2022, 37 states and the District of Columbia allowed for the use of medical marijuana on some basis. Twenty-one of those states and the District of Columbia have also legalized recreational use of marijuana. This has led to changes in employer testing for marijuana.

In many states, an employer can continue to test for marijuana and take action based on a positive result, even if medical or recreational use of marijuana is allowed under state law. In some states in which medical marijuana is allowed, an employer can still test for marijuana, but cannot take action against an applicant or employee who has a valid prescription. Finally, in at least one state in which medical and recreational marijuana use is legal, employers cannot test applicants or employees for the substance.

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

Because the laws differ so much from state to state and from job to job, an applicant or employee who uses medical or recreational marijuana will want to determine whether such use is allowable in the position the person seeks. An employment attorney can provide timely advice.

State Drug Testing Laws

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

• California: No generally applicable drug testing law; employer may refuse to hire applicant who tests positive for marijuana even if it was validly prescribed for a medical condition; drug testing programs may face challenges based on right to privacy found in California Constitution, and court will likely conduct balancing test
• Florida: Voluntary drug testing law allowing for pre-employment and post-hiring testing
• Illinois: No generally applicable drug testing law; employer cannot discriminate against employee for off-duty use of marijuana
• New York: No generally applicable drug testing law; employer cannot fire or otherwise discriminate against employee for the legal use of marijuana outside of work hours, outside of the workplace, and without use of the employer's equipment or property
• Texas: No generally applicable drug testing law

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

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