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Many employers require their employees to submit to drug testing both before and after being hired. Most of the time after being hired an employer requires reasonable suspicion before having an employee take a drug test. Even with the recent legalization of marijuana in some states, employees in those states can still be punished for testing positive. The punishments for a failed drug test can include rehabilitation, termination, and losing unemployment benefits. To learn more about drug testing and the workplace, read below.

Yes. Federal, state and private employees are all subject to drug testing. Federal statutes on drug-free workplace policies can be divided into two broad groups, or categories, of legislation. One category includes laws such as the Drug-free Workplace Act of 1988. These laws are designed explicitly to target workplace substance use. They legally compel certain types of employers to take action against drug use in the workplace, such as by developing a written policy.

The other category includes laws designed to protect the basic civil rights of American workers. These statutes provide special legal protections to certain kinds of employees. They set clear limits on how far an employer can go in investigating and establishing consequences for employment drug testing. See the Department of Health and Human Services website for more information on the federal laws.

Many private employers require that their employees undergo drug testing. State and local laws vary in the way that they protect private employees’ privacy. In many states and localities, private employers may test employees for health and safety reasons, to increase productivity in the workplace, or to prevent illegal activities in the workplace that derive from drug-related activity. See the ACLU website for more information on state laws.

There is no federal law with protections for employees who use marijuana either on the job or off duty.  Additionally, employers in all 50 states do not have to accommodate any employee who is working “under the influence” or using marijuana while on-duty. However, there are some states that require an employer to accommodate off-duty use of marijuana. Examples of those states are outlined below. See the National Drug Screening website for more information.

  • California law makes it unlawful for an employer to discriminate against an individual for using cannabis off the job. California’s law does not apply to “employees in the building and construction trades and applicants and employees in positions requiring a federal background investigation or clearance.”
  • Connecticut’s law has a long list of “exempted employers,” including those performing certain mining, manufacturing, transportation, and health and safety services. The law also identifies “exempted positions,” which include firefighters, emergency medical technicians, certain law enforcement and correction positions, and drivers that must comply with drug screening requirements.
  • In New Jersey, an employer is exempt if complying may jeopardize a federal contract or receipt of federal grant money or put the employer out of compliance with federal regulations governing its employees. But the state’s interim guidance does not address an exception for employees in safety-sensitive positions, meaning even those workers likely are protected from an adverse employment action if it is based solely on a positive drug test. 

You may be protected by the Americans with Disabilities Act (ADA). Under the ADA, an employer cannot discriminate based on disability. However, if over time the disability no longer exists, if the medication is interfering with your ability to perform essential job functions with reasonable accommodations, or if you are taking the medication illegally, then you can be fired.

For more information on disabilities and the workplace, such as what is considered a disability and what constitutes an essential job function, please visit our disability discrimination page.

Yes. In most cases, an employee seeking first-time employment can be tested as a condition of employment, even if there is no cause or reason to believe that the prospective employee has been taking drugs. The employer, however, must test all incoming employees for drugs and may not single you out for special treatment.

Some states have imposed limitations on pre-employment drug testing. For example, California allows a drug test only after the applicant has received an offer of employment conditioned on passing the test. In other states, employers that drug test are required to provide written notice or indicate in their job postings that testing is required.

Yes. Just like incoming applicants can be tested for drugs, so can existing employees. The only difference is, in most cases, your employer must have reasonable suspicion that you have been taking drugs before you can be tested.

Reasonable suspicion means that the employer has a legitimate reason, based on logic and facts, to believe that you have been taking drugs, and isn’t just guessing, speculating or discriminating against you. Reasonable suspicion can be different in different circumstances. Examples of reasonable suspicion include but are not limited to:

  • Direct observation of drug use or physical symptoms of drug use (slurred speech, uncoordinated movement, etc.)
  • Abnormal conduct
  • A report from a reliable source that an employee is using drugs
  • Evidence that an employee has tampered with his/her drug results
  • Erratic behavior while at work or significant deterioration in work performance
  • Evidence that the employee has used, possessed, sold, solicited, or transferred drugs while working or at work

It depends. Many states require that there must be reasonable suspicion to test an employee, and employers that have not complied with this requirement have been successfully sued. However, state laws vary, and in some states, private employers are permitted to randomly test their employees, even without reasonable suspicion, as long as advance notice is given Finkin, <i>Privacy in Employment Law</i> (1995). Courts have generally held that no suspicion is needed to randomly test current employees in jobs that pose a serious risk of human injury or property damage.

Yes. Federal law permits employers to test for drugs during accident investigations. Although state laws vary, in most states, it is legal to test employees for drugs following a workplace accident. Because your employer may be held liable for injuries or damage caused as a result of your accident at work, the law allows the employer to drug test you to find out if the accident was a result of your prohibited conduct, thereby protecting the employer from liability. However, employers must establish a “reasonable procedure” that allows for employees to report work related injuries, accidents and illnesses. Under this standard, requirements for post-accident drug or alcohol testing will face scrutiny under OSHA because these types of tests may deter employees from reporting an accident. If OSHA finds that the employer’s drug and alcohol testing policies for post-accident reports deters employees from reporting the accident, the employer will face fines up to $12,471.00 per violation, or $124,712 for willful violations.

Yes. Even though you are undergoing rehabilitation, your employer still has the right to test you for drugs to make sure that you are complying with the program Executive Order 12,564 (5 U.S.C. %26sect;7301.

Urine is the most common specimen used to test for drugs, but blood, breath, or other specimens can be used as well. Hair may also be used to test for drugs. Hair testing is growing in popularity and has been accepted by courts as a permissible way to test for drugs. Drug residue remains in hair for a much longer period of time than it does in urine or blood.

Usually not. Some courts have found it to be an unfair invasion of privacy to watch employees urinate. However, most courts have held that it is reasonable to enforce other safeguards that protect against tampering with urine specimens. Examples include: listening to an employee urinate, the dying of toilet water, requiring employees to wear hospital gowns, and checking the temperature of urine.

If you are a federal employee, Executive Order 12,564 requires that action be taken if you test positive for a drug test Executive Order 12,564 (5 U.S.C. %26sect;7301). You will be referred to an employee assistance program (EAP), and you must comply with the program’s rules and cease future drug use, or else you will be subject to termination.

State and private employers have their own policies if you test positive for drugs, and these often include mandatory rehabilitation, firing, or not being hired for the position in the first place. While some employers choose to do so, a private employer is not required to allow you to complete rehabilitation or give you a second chance before firing you for drug use.

You can always refuse a drug test. However, as an applicant you may not be hired as a result of not taking the drug test. As an employee, if you are fired because of your refusal to take the test, you may have little recourse. In fact, in some states, you might be denied unemployment benefits if you are fired for refusing to take a drug test.

It depends on the state, but generally if the state allows for drug testing they can deny unemployment benefits for a failed or refused drug test. Some states do allow you to get your benefits if you are still unemployed after a set period of time.

The amount of time a drug can be detected in your system varies widely not only between drugs but between people. Some drugs leave the system within a few hours while others can be detected for weeks after entering your system, like THC from marijuana by a frequent user.

Although employers are not necessarily required to treat their employees fairly and equally, the failure to do so may subject your employer to a discrimination lawsuit if certain types of employees are treated differently. Check with your state department of labor, or a private attorney, for more information to help you determine whether you may be able to bring a discrimination case. If you are a member of a union, you also may be able to file a grievance over your termination.

State laws vary as to what action you can take. However, there are some methods of recourse that may help you challenge the results. If you are a member of a union, you may be able to file a grievance over your termination that challenges the accuracy of the test. You may check with your state department of labor, a private attorney, or contact one of the following advocates for help and information:

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Madeline Messa

Madeline Messa se yon 3L nan Syracuse University College of Law. Li gradye nan Eta Penn ak yon diplòm nan jounalis. Avèk rechèch legal li ak ekri pou San Patipri Travay, li fè efò yo ekipe moun ki gen enfòmasyon yo bezwen yo dwe pwòp defansè yo pi byen.