Pre-Employment Drug Testing: Overview

Generally, employers have free reign to conduct drug screenings of prospective employees as a condition of getting the job. Such drug testing is technically not mandatory, since the applicant is free to decline the drug screening. But by doing so, the applicant also removes himself or herself from consideration for the job. One exception to an employer's right to conduct routine, pre-employment drug tests is union workers; drug screening must be explicitly negotiated and addressed in union contracts.

Employers need not justify pre-employment drug testing, other than the desire to maintain a purportedly drug-free workplace (although different drugs are much more detectable than others, and there are multiple products on the market designed to mask drug residue in the urine). Some employees justify the use of drug screening as a protection against liability for any drug-fueled injuries caused or suffered by employees.

Certain state laws also effect the scope of pre-employment drug testing. Alabama, for example, has a drug-free workplace program in which participating employers receive a discount on their workers' compensation insurance. Employers in Hawaii, meanwhile, must provide job applicants with advance notice of any drug screening, including a list of substances that will be tested.

Drug Screening During the Course of Employment

Employers may not randomly and without a valid reason test existing employees for drug use. But they may require drug testing under certain situations or for certain types of jobs. An airplane pilot, for example, should expect to be tested regularly; but a department store would have a difficult time justifying the drug testing of a cashier without cause. State laws vary, but employers typically are free to drug test employees for the following reasons:

• Employee's job poses a safety risk
• Employee is involved in a drug rehabilitation program
• Employee was involved in work-related incident where drug use was suspected
• Management has reason to believe the employee has been using drugs during work

Federal Employees and Federal Contracts

The Drug-Free Workplace Act (DFWA) of 1988 put in place mandatory drug testing guidelines with respect to federal employees. Those federal agencies that do screen for drug use must follow specific procedures laid out by the Substance Abuse and Mental Health Services Administration (SAMHSA). The DFWA also requires most federal contractors to drug test their employees.

State Marijuana Laws and Drug Testing

Despite the legalization of medical -- and in some states, recreational -- use of marijuana, it is not a defense against either pre-employment or on-the-job drug screening. This has been challenged by medical marijuana users who claimed they were unlawfully terminated (or discriminated against in the hiring process) after failing drug tests. This is likely to be the case until federal laws change with respect to marijuana.

Click on a link below to learn more about drug testing in the workplace.