Employers seeking to reduce occupational injuries may consider adopting a drug-free workplace policy. Components of such programs often include a written statement describing the consequences of alcohol and substance abuse at work, an employee assistance program (EAP) that provides substance abuse counseling and treatment, and drug testing. If an employer seeks to test its employees and job applicants for illegal drugs, it must comply with applicable laws. Most regulations governing this area come from the state and local level, with federal laws mostly limited to certain highly regulated industries, such as transportation and military contracting.
Most employers in the private sector are allowed to test applicants for drug use before they are hired if:
The employment status of the person being tested determines the level of protection the person receives with greater restrictions placed on the testing of private-sector employees than on job applicants.
Although employers may require most job applicants to submit to drug testing as a prerequisite to hiring, some substantial restrictions, which vary from state to state, apply to private employer testing. Some states like Alabama and Florida have a drug-free workplace program that regulates drug testing and gives employers who participate a discount on their workers’ compensation insurance premiums.
In states that have a drug-free workplace program, employers are typically permitted to test after an employee comes back to work after rehabilitation following a positive drug test. They also can test after an accident, based on reasonable suspicion, or even on a random basis. Usually, employees who voluntarily seek treatment for substance abuse cannot be subject to an adverse employment decision unless they have a positive test result or were previously in treatment.
In several states, such as Connecticut, companies are not permitted to conduct random drug tests or conduct blanket drug tests. Instead, the employer must have a reasonable suspicion for believing a particular employee is using drugs, or there must be a high risk of injury associated with the job if it is performed by someone under the influence of drugs.
In general, "reasonable suspicion" of drug use is based on logical inferences, such as observing physical symptoms associated with drug use like poor coordination, slurred speech, erratic conduct, or inappropriate responses. It can also be based on information that an employee contributed to causing an accident or that the employee used, possessed, or transferred drugs on the job.
If an employee has appeared impaired or an was involved in an accident that may have been caused by drug use, employers in states that permit workplace testing based on an employer's reasonable suspicion have been permitted to conduct a drug test. For example, if you seem drunk while operating a forklift on a construction site and accidentally run into another employee or narrowly avoid running into someone, you could be required to submit to testing. Similarly, if you are unconscious at your desk at an office job, unable to answer questions, you could be required to take a drug test.
You can refuse to take the test, but there may be unpleasant consequences. Your employer can fire you for refusing to take a test, and there will be no evidence to show you were not on drugs. In some states, such as Colorado, you can be denied unemployment benefits when you are fired for refusing to take a drug test where the employer had a preexisting written policy prohibiting drug use.
What if you took a drug test, but were unfairly suspended or demoted as a result? In that case, you may need to retain an attorney to show that your employer or the test-takers didn't meet the requirements of your state's law. This can be difficult because employers have considerable leeway in designing the test-taking conditions, such as requiring you to take the test in a hospital gown to make sure you haven't tampered with the urine sample.
However, there are limits to the leeway given to employers. For example, your employer may not have a monitor watch you take the test.
There are also laws in place in some states, such as Maine, that require employers to follow very detailed procedural rules, such as adopting a written policy approved by the state labor department or maintaining workplace counseling. Among these are laws related to the specific standards that testing labs must follow. It may be possible to challenge an employer's conduct in this regard if you are fired for failure to take a test or if your test comes back with results indicative of drug use.
Employees in the many states that have not enacted specific legal procedures related to drug or alcohol testing, such as Massachusetts, Pennsylvania, Illinois, Texas, and California, may be more vulnerable to being tested without notice and without safeguards in place. Employees in those states will have to rely on other legal theories to challenge an employer's right to test, like invasion of privacy or discrimination. In California, for example, courts balance the employee's legitimate expectation of privacy, granted by the state constitution, against an employer's reason for testing.