What Employers & Employees Should Know About Drug Testing Laws

With the exception of some heavily regulated industries such as nuclear energy, military contracting and transportation, federal laws do not specifically address drug testing. However, many states and local governments regulate this practice. In most cases, the necessity of testing is left up to the discretion of the employer.

Drug Testing Prospective Employees
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As a rule, state laws permit employers to test prospective employees for drug use. Drug testing is performed at the expense of the employer. Some states only permit drug screening tests if:

• The applicant is aware that the screening is part of the hiring process.
• The employer has extended a good-faith offer of employment to the applicant pending a drug test.
• The test is conducted at an approved state-certified lab.
• Every potential new hire is tested in the same manner.

Most companies today planning drug screening tests on applicants include the criteria in the job description of the application. Anyone who fills out an application and sees that a drug test is required for employment should understand that the only options are to agree to the test or refuse the job.
Drug Testing Current Employees
When it comes to workers who have already been hired and have been working at the company for a while, there are some legal issues associated with drug testing. In several states, employers are not allowed to conduct tests of all employees randomly. Testing must be directed toward one employee or a few who raise concerns based on their behavior, talk or work performance. Also, many states only allow such testing if the job poses a major risk to the worker or other workers if the individual in question is using drugs.

Most courts have ruled that it is acceptable for employers to test employees after a workplace accident when possible drug use may have been to blame. Also, if there is an incident that occurs where an employee appears to be impaired, it is usually acceptable to conduct a drug test. For example, someone driving a forklift through a warehouse and swerving into shelves or other workers' areas may be a good candidate for drug testing. Also, a secretary who is sleeping at a desk and has slurred speech after being awakened may be selected for a drug test. However, it is always important to rule out the possibility of a medical emergency such as a stroke if an employee is behaving in an odd manner.
Defining Reasonable Suspicion
Every state has its own rules, and some states are more specific than others. However, this is a general list of actions that lead to reasonable suspicion:

• An employee was clearly using drugs and displayed physical symptoms such as odd behavior, slurred speech or uncoordinated movement.
• A credible source or coworker provided a report or proof of an employee using drugs at work.
• A worker displays significantly deteriorated work performance or erratic behavior.
• There is evidence that a worker possessed, sold or solicited drugs at work.
• An employee contributed to a workplace accident with negligent behavior that could have been caused by drug use.
• There is evidence that an employee tampered with the results or specimens of a drug test.

Employees can challenge drug tests but must show proof of unfair treatment to win back a job or be compensated. There is little recourse after termination for refusal of testing, and some states deny unemployment benefits to such individuals. To learn more about testing and workplace safety, discuss this with an agent.