FAQ on Pre-Employment Drug Testing

Looking for a new job is stressful. If you are fortunate enough to land a job offer, you must jump through more hoops before the position becomes yours. Many employers offer employment contingent on the results of background checks and a pre-employment drug screening.

You may have questions if your potential employer makes an offer of employment contingent on a pre-employment drug test. FindLaw answers some common questions about employee drug testing.

• Why do employers conduct pre-employment drug screenings?
• What types of drug tests do employers use?
• What do pre-employment drug tests look for?
• How many people fail pre-employment drug tests?
• Medical marijuana and cannabis are legal in my state. Can I fail the drug test?
• Can a job offer be withdrawn after a drug test?
• What rights do I have during a pre-employment drug test?
• How do I get my results for a pre-employment drug screen?
• I failed my pre-employment drug test. What can I do?
• Discuss pre-employment drug testing with an attorney

Facing a drug test as part of a job application can be stressful. This is particularly true if you are unfamiliar with the process or are concerned about your rights. If you are facing a pre-employment drug test or believe an employer violated your rights during the testing process, speak with an employment attorney. They can help protect your interests and explain how your state's specific laws apply to your situation.

Why Do Employers Conduct Pre-Employment Drug Screenings?

Many employers use pre-employment drug screenings as a condition of employment for potential new hires. Employees with substance abuse issues are generally more likely to miss work, have workplace accidents, and have a higher turnover rate. Screening for substance use, as well as conducting random drug testing, may help prevent drug-related accidents and low productivity in the workplace.

According to the Recovery Centers of America, alcohol and drug abuse cost the economy $3.12 trillion per year. This number includes costs relating to crime, lost work productivity, and health care.

Federal agencies and contractors must follow the drug-free workplace policy. The Drug-Free Workplace Act of 1988 allocates special funds to federal contractors and companies that comply. The law requires current employees in federally regulated, safety-sensitive positions to pass drug screenings. This includes workers with the Department of Transportation (DOT), airline pilots, bus drivers, truck drivers, and railway workers. However, it is common for employers in any industry to conduct pre-employment drug tests.

In recent years, particularly with the legalization of cannabis in multiple states, some employers started reevaluating their drug testing and pre-employment testing policies.

Some companies have stopped testing for marijuana or removed it from pre-employment screening. However, this varies significantly by state and industry. Safety-sensitive positions and federally regulated jobs may still maintain a strict drug testing requirement.

What Types of Drug Tests Do Employers Use?

Pre-employment workplace drug testing can be conducted using several different methods, each with its own advantages, detection windows, and typical applications. The most common types of drug tests include:

Urine Testing

Urine testing is the most widely used method for pre-employment drug screening. It is cost-effective and can detect drug use from the past few days up to a week for most substances. Marijuana can be detected for longer periods (up to 30 days) for heavy users.

This is the only testing method approved for federally mandated testing programs, including Department of Transportation (DOT) testing.

Oral Fluid (Saliva) Testing

Oral fluid testing is becoming increasingly popular due to its non-invasive collection method. It is also difficult to fake, since the collection is directly observed.

Saliva testing can detect very recent drug use (as soon as 15 minutes after use) and typically up to one to three days afterward. This makes it particularly useful for reasonable suspicion or post-accident testing. Industries valuing on-site collection capabilities often prefer this method.

Blood Testing

Blood testing is the most invasive and expensive method. But it provides the most accurate results. It has a short detection window, typically one to two days for most substances.

Due to its cost and invasiveness, blood testing is less common for pre-employment screening and is typically reserved for post-accident situations where determining current impairment is crucial.

The type of test used often depends on industry standards, company policy, and the specific purpose of testing. Safety-sensitive industries typically use more rigorous testing methods, while general employment screening might utilize more economical options like urine or oral fluid testing.

What Do Pre-Employment Drug Tests Look For?

Pre-employment drug testing usually looks for drugs that have the potential for abuse. These include illegal drugs, controlled substances, and some prescription drugs. The drugs that are often tested for include:

• Cannabis/marijuana (THC)
• Cocaine and its metabolites
• Phencyclidine (PCP)
• Opiates, such as codeine, hydrocodone, oxycodone, morphine, heroin, or their metabolites
• Amphetamines and methamphetamine
• MDMA/ecstasy

Pre-employment workplace drug testing usually requires a urine sample. Employers can also require blood, saliva, or hair testing. The screening takes place at laboratories that specialize in drug testing programs.

Test results are confidential and covered under the Health Insurance Portability and Accountability Act (HIPAA). Only you, your potential employer, and the medical review officer will know your results.

How Many People Fail Pre-Employment Drug Tests?

A 2021 analysis by Quest Diagnostics found the U.S. population's rate of positive pre-employment drug screens was the highest it had been in 20 years.

The positive result rate in urine tests increased from 4.6% in 2017 to 5.4% in 2021. Many experts believe this increase in alcohol and drug use is due to the coronavirus pandemic. Drugs that saw the most significant rise include cocaine, methamphetamines, and cannabis/THC.

Positive results for marijuana have continued to climb. According to 2024 data, drug tests positive for marijuana increased in the general U.S. workforce by 4.7% over the last two years. Over the last five years, marijuana positivity has increased by 45.2%.

Medical Marijuana and Cannabis Are Legal in My State. Can I Still Fail a Drug Test?

In some states, yes. 

The legalization of medical or recreational cannabis in many states created a complex situation for job seekers. Despite the legalization at the state level, cannabis remains illegal under federal law.

Even in states with legal cannabis, most private employers retain the right to test for THC/cannabis and make employment decisions based on the results. This means you could legally use cannabis under your state law, yet still fail the pre-employment drug test and lose a job opportunity. It is important to check the employer's written policy for pre-employment drug testing to see how they handle cannabis use.

However, several states have also recognized the varying rules and enacted protections for cannabis users.

For example, in Minnesota, employers generally can't make a job applicant take a cannabis-specific drug test. They can use tests that include the detection of marijuana, but they cannot withdraw an offer based solely on the presence of cannabis in a test result. For existing employees, employers may only discipline for cannabis use in certain circumstances, such as workplace impairment or when it violates the written policies in the workplace.

Other states like New York, Nevada, and New Jersey have similar protections in place for job applicants who use cannabis legally under state law. It is important to research the specific laws in your state regarding employment and cannabis use.

Can a Job Offer Be Withdrawn After a Drug Test?

Yes, in most states, employers can legally withdraw a job offer if you fail a pre-employment drug test. Some employment offers are contingent upon passing certain tests, so if you do not pass, the employer can rescind the offer. However, there are certain exceptions to this rule:

• If you have a valid prescription for a medication that caused the positive result: In EEOC v. Modern Group Ltd (E.D. Texas, 2024), an employer paid a $35,000 settlement after rescinding a job offer to a welder who tested positive for prescribed methadone and Xanax without engaging in the interactive process required by the ADA. The Americans with Disabilities Act (ADA) prohibits discrimination against applicants with disabilities, including those taking prescription medications for treatment of qualifying conditions.

• State-specific protections for cannabis users: As mentioned above, some state laws provide certain protections for medical or recreational marijuana users. For instance, employers in Minnesota can conduct cannabis testing. However, the law limits when they can take adverse actions against the employee.

Nevada was the first to prohibit pre-employment discrimination for marijuana use. Assembly Bill No. 132 generally prevents employers from rejecting job applicants merely based on positive marijuana tests. However, an exception applies for safety-sensitive positions such as firefighters and emergency medical technicians, positions that require operating a motor vehicle and are subject to testing. In addition, in positions that, in the assessment of the employer, could adversely affect the safety of others, the employer could also reject employment.

One notable case in the state of Michigan is Eplee v. City of Lansing. Here, the court ruled that a company could withdraw an employment offer after the candidate failed a drug test or tested positive for THC, despite the employee's valid medical marijuana card. The court ruled that the Medical Marihuana Act in Michigan did not create a protected class for medical marijuana users in the context of employment.

Due to these varying rules, it is best to check your state law or consult an employment attorney to learn more.

What Rights Do I Have During a Pre-Employment Drug Test?

When undergoing a pre-employment drug test, you have several important rights that protect your privacy, dignity, and legal interests:

Right to Prior Notice

Employers must inform you about their drug testing policy before administering a test. The employer should provide the notice in writing, typically during the job application process or a conditional job offer.

The notice should outline which substances they will test and the testing procedures.

Right to Confidentiality

Federal laws consider your drug test results as confidential medical information. Under the Health Insurance Portability and Accountability Act (HIPAA), results can only be shared with the employer, the Medical Review Officer, and those with a legitimate need to know.

Employers cannot share your results with other employers or unauthorized personnel.

Right to Explain Positive Results

If you test positive, you have the right to speak with a Medical Review Officer (MRO) to explain potential legitimate reasons for the positive result. This is especially important if you take prescription medications that might cause a positive result.

When this happens, be ready to provide valid prescriptions or doctor's notes to verify your explanation.

Protection Against Discrimination

The Americans with Disabilities Act (ADA) provides protection against discrimination based on past substance abuse or participation in rehabilitation programs. However, it does not protect against employment actions taken based on current illegal drug use.

If you have a valid prescription for medication that causes a positive result, the ADA may protect you from discrimination based on your medical condition.

The ADA applies to any employer with 15 or more employees.

State-Specific Rights

Your rights may vary significantly depending on your state. Some states have more restrictive laws governing when and how drug testing can be conducted, while others have more permissive regulations. It's important to familiarize yourself with the specific laws in your state.

If you believe your rights have been violated during a pre-employment drug test, consider consulting with an employment attorney who specializes in workplace drug testing issues.

How Do I Get My Results for a Pre-Employment Drug Screen?

A workplace drug test usually only takes a few days to provide results. An employer may even request a rapid test, which delivers results on the same day. Negative test results can take 24 hours. Non-negative results need additional review and take more time.

If your results are negative, it's common for a medical review officer (MRO) to contact your employer with the results. Your employer will then contact you about the next steps in the hiring process.

If you test positive for drugs or alcohol, an MRO will contact you for additional questioning. They will likely ask if you take any prescription or herbal medications that could have affected the test results. If you do, you may need proof of a valid prescription. The employer will make a decision about your results.

I Failed My Pre-Employment Drug Test. What Can I Do?

Employers must follow all federal and state pre-employment drug testing laws. If you feel an employer singled you out for a pre-employment drug test, you may want to contact an attorney.

However, if you are an active user of illegal substances, you may have no recourse for a failed test. But remember, your test results are private, and employers cannot share them with other employers.

Discuss Pre-Employment Drug Testing With an Attorney

If you believe you were wrongfully denied employment due to a pre-employment drug test, contact a local employment law attorney. An attorney can review your case and provide valuable legal advice on whether your employer's drug testing policies follow the law.