The Employment Drug Testing Laws Employers Need to Know About

drug testing laws
Drug tests are important tools for employers looking to screen job candidates, but are here some employment drug test laws you should know about.

While nearly half of employers around the country implement drug testing, employers don’t always get the result they want. One of the reasons for this is that employers don’t know employment drug test laws very well. When you’re upsetting employees unnecessarily or running the wrong kind of tests, you may break the law or waste your money.

Here is what you need to know about drug testing laws before implementing them at your workplace.

Testing Before Hiring

In a lot of states, especially in industries that require heavy machinery or dealing with specialized tools, drug testing is common. Private employers in just about every industry have the authority to ask for drug tests before employing anyone. While employees can always decline to be screened, but that declination isn’t always taken lightly by employers.

Drug testing in the course of employment gets justified as an issue of safety. If someone is still in the application process and asking for a test, it’s clear what the employer’s interest is. Their interest is in a drug-free workplace.

While there’s a strong argument to be made in support of this, there are other reasons why this kind of testing is problematic. If an employee takes certain medications or has a medical marijuana card, they’ll end up having an uncomfortable conversation right away.

If employees are a member of a union, they may be able to skirt these kinds of tests. These programs get negotiated over by union leaders and their membership when talking about work conditions. Check with union leaders to see what your limits are in this kind of situation.

The Constitution protects some federal employees but rarely in the case of private-sector employment. Check with local laws to see if you are prohibited from testing previous to employment.

Testing After Hiring

States across the country have laws that control the conditions under which an employer can ask employees to get tested. These kinds of tests need to be justified by safety concerns or in connection to real business necessities. Otherwise, they’re subject to being named as an invasion of privacy.

From state to state, laws differ regarding who gets to ask employees to submit to a screening. Outside of having strong justifications, an employee may not legally be required to submit to a drug test.

If a job poses a significant risk to others, employees are going to have to take a test. Forklift operators, truck and vehicle drivers, or heavy equipment users should expect to have to take a test.

If an employee is currently in a drug rehabilitation program, an employer may ask about your progress. In several cases, employers get access to tests as required by a program or a counselor. If this rehabilitation is related to a recent incident or a work-related injury, this is often for insurance reasons and to protect a worker’s employment.

Reasonable suspicion, usually related to physical evidence of drug or alcohol use may lead to testing. While this isn’t common, it’s possible that its a condition of an employer’s legal or insurance obligations.

For Federal Employees

The Drug-Free Workplace Act, passed in 1988, spurred several businesses to create standards for drug testing at their workplace. Federal employees, contractors, or any kind of uniformed services that they employ typically to pass tests.

In order to ask employees to take these kinds of tests, there are a few standards that the tests need to meet. Conducting tests is a matter of privacy and often digs into personal medical history. If you’re a manager or an employer at a federal agency, your drug tests need to follow a few procedures.

To find out more about these standards, check out the Substance Abuse and Mental Health Services website. They outline what’s required and what’s legal in the context of testing.

Testing for most drugs is covered under their guidelines. Everything from amphetamines, cannabinoids, cocaine, opiates, and PCP require medical review officers to approve the testing. Otherwise, you or your employees could violate the law.

Protecting Everyone’s Privacy

Workplace drug testing policies are a minefield when it comes to legal concerns. However, most drug testing policies haven’t been successfully challenged when it comes to concerns of privacy violations. Drug testing, when done properly, usually preserves an individual’s rights when giving employers what they’re looking for.

It’s easy for these tests to violate the tested employee’s rights when conducted poorly. The results could even be utilized in a way that crosses the line.

There are past cases where positive test results have been brought into a court of law to convict a criminal. The U.S. Supreme Court has ruled that this is illegal and can’t be done without the expressed consent of the employee in question.

Drug test information that’s disclosed indiscriminately or improperly is up for being challenged in a court of law. When employers test their employees, they need to be conducted with the employee’s privacy in mind.

Excessive or inappropriate drug testing by employers puts the testing at risk of becoming the source of a lawsuit. Employers must protect the employee’s privacy if they want to make use of testing in the course of employment.

While there are laws protecting both sides, it’s vital for employers to realize why they’re deciding to run tests before implementing them. They can sow bad morale into the workplace regardless of how well they’re conducted.

Employment Drug Test Laws Vary

With the introduction of medical marijuana in several states across the country, we’ll see employment drug test laws change in coming years. So long as your intention remains clear and safety is your top priority, you’ll be able to implement testing that respects laws and keeps your workplace safe.

For more on how medical marijuana is set to change drug testing, check out our latest guide.

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