Most employees and applicants will be required to take a drug test at least once during their careers. From the employer’s perspective, (illegal) drug use results in a higher level of absenteeism and decreased productivity, among other adverse factors. Additionally, many employers implement drug screening procedures before hiring (and sometimes after hiring) to protect themselves from liability for their workers’ actions. And while many workers believe that drug testing violates their right to privacy, employers often have the protection of the law, as long as they comply with state and federal regulations and apply the policy equally. This article deals with the legality of drug testing, both before and after hiring.

Drug Testing Before Hiring

With a few exceptions, private employers may require new hires to take a drug test for the first time as a condition of employment. Applicants have the right to refuse the test, but such refusal usually implies the job offer’s rejection. Unlike on-the-job drug testing, it does not need to be justified by safety considerations or other employment-related concerns beyond the desire to achieve a drug-free work environment when it is done before hiring.

Union members may not be required to submit to a narcotics test before hiring (or after) unless such testing programs are specifically negotiated and addressed in union contracts. While the U.S. Constitution does not protect private-sector employees from what could be considered privacy invasion, some states have laws that limit employers’ rights to test employees (or applicants) drug detection.

Drug Testing During Employment

Many states have laws limiting the conditions under which an employer can require employees to take a drug test. Typically, employers must justify testing employees with business or safety needs or respond to suspected use of drugs such as opioids, hallucinogens, or pain relievers.

In general, while they differ by state, testing employees for illegal drug use is permitted under the following circumstances:

• The employer’s job poses a significant danger to the safety of yourself or others.
• The employee is enrolled in a drug rehab program or has just been discharged from such a program.
• The employee was involved in a workplace incident in which drug use is suspected.
• Management has a reasonable suspicion that a particular employee has been using illegal drugs based on behavior or physical evidence.

State and federal regulations require employees in certain professions to be tested for drugs, including airline pilots and those who operate heavy machinery. If you’re unsure about the drug testing requirements for your job, contact the appropriate professional organization.

Invasion of privacy

Attempts to avoid drug testing because it violates employee privacy have been unsuccessful. That’s because the tests themselves do generally not violate an individual’s rights, although sometimes the way the test is performed (or the use of the results) may constitute a violation.

For example, the U.S. Supreme Court held that positive drug test results could not be used in subsequent criminal cases without the employee’s consent. Also, a drug test can be challenged on constitutional grounds if the results are indiscriminately disclosed, if the test is performed in a way that violates the person’s right to privacy, or if the test is performed excessively or improperly.

Medical Marijuana

At least 33 states have enacted laws that allow medical marijuana use by patients with health problems. Still, employees in those states are not required to provide reasonable accommodation to people who use medical marijuana. In other words, employers are free to ignore a legitimate state-issued medical marijuana certificate. One of the legal reasons behind this situation is that employers could be liable for any work-related injury caused by an employee whose marijuana test was positive, whether or not it is for medicinal use.

State Laws About Drug Testing

Most states have laws that address the implementation of workplace drug tests, either by limiting the circumstances under which the tests can be done or by providing incentives to employers to implement such tests.

The following is a brief sample of state policies on drug testing:

• California: Employers who obtain state contracts or grants must certify that they will provide a drug-free work environment (similar to the federal requirement); Contractors must also provide a written policy to their employees.
• Florida: State law gives priority to contractors who have implemented a procedure for a drug-free work environment, receiving a discount on your premiums for workers’ compensation.
• Illinois: There is no legislation regarding drug testing.
• New York: Does not have legislation regarding drug testing; state courts have supported the random implementation of drug and alcohol testing of city bus drivers, police officers, and correctional officers.
• Texas: Businesses with more than 15 employees (and coverage for workers’ compensation) should adopt the workplace drug reduction policy of their choice.

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