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Drug Testing at Work Isn't Always Legal

By Andrew Chow, Esq. | Last updated on

Pre-employment drug testing is a common condition for a job offer. But once an employee is hired, when is it legal to ask for a drug test at work?

State laws often limit the situations in which an employer can conduct drug testing of current employees. In general, they include situations in which safety is an issue, or when an employer suspects an employee of illegal drug use. In all cases, an employer should have a written drug-testing policy.

Here are three scenarios in which drug testing at work is generally legal:

1. The job requires it, or poses safety risks.

State and federal regulations require workers in certain professions, like airline pilots and commercial truck drivers, to submit to random drug testing during employment.

Jobs with inherent safety risks, like the operation of heavy machinery, may also call for random or periodic drug testing, as specified in a written policy. But some states like California prohibit most types of random drug testing. You may want to check with a local employment attorney to see what the laws are where you live.

2. An employer has "reasonable suspicion" that an employee is using illegal drugs.

"Reasonable suspicion" may include physical evidence, like drugs in an employee's locker, or an employee's behavior, such as slurred speech or lapses in work performance. Drug tests at work based on "reasonable suspicion" are generally upheld when an employer's suspicion is legitimate, and the testing follows an employer's established written policy.

3. After an employee accident, or an employee's participation in a drug rehab program.

Post-accident drug testing may be allowed, if an employer had reason to suspect drug use led to the employee's accident. Employees enrolled in, or who have completed, a drug rehab program may also be tested. However, these drug tests must fall in line with an employer's written policy, and an employer must consistently follow the policy -- or risk getting the drug test tossed out in court.

Employers who want to keep drug testing at work as an option may want to have employees sign-off on the policy to show they understand it. Consulting an employment lawyer will also help ensure your drug testing policy conforms to the law.

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