Before starting a workplace drug testing program, employers must be mindful of federal and state laws and employees’ civil liberties.
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Last Updated: May 24, 2024 Published Date: February 15, 2023Table of contents
The question of whether or not to send in an employee for drug testing is becoming increasingly tricky to navigate in today’s world. With the legalization of recreational marijuana and therapeutic psychedelics spreading across the U.S., more and more employers need to reconcile drug testing policies with shifting legalization and cultural norms.
Drug testing is not illegal; in fact, drug-testing policies are a must for businesses in high-risk industries. However, with today’s complex workforce, employers must weigh their drug-testing programs’ risks and rewards to remain compliant with all necessary laws and keep their workers and business safe.
If you’re looking for tools to help keep track of drug-testing procedures, check out our HR Software Guide for solutions to help mitigate risk in the workplace.
Yes, but it’s complicated. Drug testing employees is a requirement for some, such as employers with federal contracts under the Drug-Free Workplace Act of 1988 or in safety-sensitive industries like aviation, transit, and defense. Outside of these instances, private employers in the U.S. are not required to have drug-free or drug-testing policies.
Despite the lack of federal regulation, this does not mean employers shouldn’t drug test their employees, nor should all employers have a zero-tolerance drug-testing policy. Instead, employers must be aware of the intersection of state, local, and other workers’ rights laws when deciding to drug test employees.
Drug-testing laws vary by state. In some states, like Michigan, there are no laws prohibiting employers from establishing drug-testing policies in the workplace. However, other states, like Maine or Ohio, dictate who can be tested, how they can be tested, how much advance notice must be given, and how to discipline or rehabilitate employees following a positive test.
To make matters more complicated is the growing legalization of marijuana and other psychedelics for either medicinal or recreational use. Employers, especially those in safety-conscious industries like construction and transportation, are concerned with how these laws conflict with their already well-established drug-testing programs.
Because marijuana continues to be a Schedule I controlled substance at the federal level, employers have some leeway when testing for cannabis. While employers must still follow the drug-testing laws of the states of their employees, they can still test for marijuana use.
“Many employers have decided to treat marijuana as they do alcohol — only prohibiting the use of marijuana during the workday as well as forbidding employees from being under the influence of the drug at work,” said Jonathan Sigel, a partner at Mirick O’Connell in Massachusetts. “Employers (in high-risk industries) often choose to continue testing for marijuana for their safety-sensitive jobs because of the greater risk of potential harm that could be caused by an employee who is under the influence of marijuana at work.”
In other words, prohibiting controlled substances only while employees are at work is one way employers attempt to maintain safety standards while juggling new state legislation.
Federally, employees have certain protections under the Americans with Disabilities Act, the Family Medical Leave Act, Title VII of the Civil Rights Act of 1964, and the National Labor Relations Act. In short, these laws prevent employers from singling out certain protected groups over others for drug testing or denying employees protected unpaid leave for substance abuse rehabilitation. Additionally, employers with a collective bargaining agreement must negotiate with their unions before implementing a drug-testing policy.
Even if both federal and states allow employers to implement a drug-testing policy, employers must consider how their employees’ legal behavior will affect their drug test results and infringe on their civil liberties. Incorrectly requiring an employee to test could result in hefty fines or lawsuits for wrongful termination, defamation, discrimination, or invasion of privacy.
For example, employers with a “reasonable suspicion” policy — drug testing an employee if the company believes they are under the influence at work — could have negative consequences for employers. Employers could inadvertently target individuals with legal prescriptions for controlled substances or a disability. This could lead to a discrimination lawsuit or cause current and incoming employees to look unfavorably at the organization. This is especially true with marijuana legalization.
“We (need) to reorient how businesses (think) about marijuana use generally,” said Heather Hammond, an employment law attorney at Gravel & Shea in Vermont. “Since it is legal to buy and use the substance for recreational purposes (in some states), employers (need) to adjust their expectations for employees’ off-work conduct.”
Before penalizing their workforce, employers need to consider whether drug testing is truly a safety issue. If the need is there, consult local employment law attorneys before developing a drug-testing program or requiring an individual to submit to testing.
Generally, companies require an employee to drug test for the following reasons:
Company policies vary, but many employers require employees to submit to an on-site, rapid drug test before sending employees with positive tests to a medical facility for confirmation testing. The drug tests themselves require either hair, urine, saliva, or blood samples from which employers can screen for the following drugs:
Formal drug-testing policies typically list four scenarios that prompt an employee drug test: preemployment, post-accident, random, and reasonable suspicion. Companies could drug test employees in all or some of these scenarios. But whatever they decide, employers must document the policy and enforce it consistently among all employees in the same situation.
Preemployment drug testing typically occurs after an employer makes a job offer to the employee but before the employee starts, pending the drug test results. Employers hiring for positions in safety-sensitive roles, like truck driving or operating heavy equipment, use preemployment drug screening to prevent hiring candidates who may pose a safety risk to business operations before hiring them.
However, employers without a bonafide safety concern should hesitate to include preemployment screening as part of their onboarding process, as it could stall recruitment efforts, especially in areas where certain substances are legal.
If you are interested in a preemployment drug screening as part of your onboarding, check out 7 of the Most Reliable Employment Screening Services for our list of top software solutions to help.
Post-accident drug testing occurs after an employee injures themselves on the job. While many employers conduct post-accident testing to deter drug use on the job, it can also prevent employees from reporting a workplace injury for fear of reprisal following positive results.
Instead, employers should consider a more nuanced post-accident drug test, such as one that tests individuals only if potential drug use could have contributed to the accident.
Random drug testing is one of the most effective workplace drug use deterrents. Employers select employees at random for unannounced drug testing. Although great for businesses in high-risk industries like construction or transportation, companies should be wary before randomly testing all employees. Obligating employees to drug test in low-risk jobs like office work could infringe on employees’ right to privacy.
Reasonable suspicion drug testing involves drug testing employees for the following reasons:
Although reasonable suspicion drug testing is meant to prevent injuries or accidents in the workplace before they happen, employers should also be careful such testing does not interfere with employee civil rights, such as those under the ADA.
Outside of the four main scenarios, employers could also drug test employees after completing a substance abuse rehabilitation program or as part of an annual physical testing program in specific industries. Testing in these instances must align with employers’ safety policies without violating any federal, state, local, or civil rights laws.
If safety is not the cornerstone of a job position, then implementing a workplace drug-testing program may have more drawbacks than benefits. In particular, drug tests are often inaccurate and expensive, violate employee privacy, lower company morale, and inhibit an employer’s recruitment efforts.
While certain drug tests, like urine tests, are more accurate than others, there are often false positives. Certain foods like poppy seeds or medications like ibuprofen could result in positive drug tests. Even worse is drug testing for marijuana.
“Current technology does not establish whether an individual is under the influence of marijuana at the time of the test, only whether the individual likely used marijuana in the past few weeks,” said Hugh Murray, chair at McCarter & English’s Employment Law Practice in Connecticut.
This disproportionately affects employees who use marijuana legally outside of work or one time long ago.
Because employees are forced to prove their innocence for false-positive tests, employees call into question their trust in and loyalty to the company, leading to the deterioration of employee-employer relationships.
Drug tests on the market today cost anywhere between $10 to $80, depending on the type of test and the drugs screened. But if we took an average price of $45 per drug test, an employer who decides to randomly drug test their 100 employees annually would be spending at least $4,500 on testing. For some employers, this is a necessary cost compared to an injury or accident on the job. For others, this is money they could spend on higher-priority areas of the business instead.
Drug testing forces employees to disclose medical conditions normally protected under the Health Insurance Portability and Accountability Act to employers. For example, employees using sleep aids for insomnia could show up as positive on a drug test. This could result in resentment toward employers, as employees notify employers of their private medical conditions just to avoid disciplinary action or termination.
A pervasive workplace drug-testing program can feel intrusive and authoritarian, especially for employees in low-risk jobs who legally use drugs during their off-hours. To them, employers should focus on performance-based metrics instead of penalizing them for behavior that has no bearing on their abilities to do their jobs.
Employers could potentially alienate candidates during their hiring process by requiring pre-screening or other forms of drug testing, especially for legal marijuana use.
“For many employers, the hiring landscape is challenging enough without excluding or deterring (workers who use marijuana),” according to Gravel & Shea employment law attorney Hammond. Nowadays, it may be more beneficial for employers to forgo a drug test to attract and retain talent and promote a company reputation of inclusivity.
The decision to implement a drug-testing policy is a business one requiring careful consideration. Some questions employers should ask themselves before starting a drug-testing program include:
“For some businesses, the reason (to drug test) is a clear state or federal mandate, in which case the analysis is straightforward,” according to Murray. “For others, the reasons are less clear.”
In other words, in high-risk industries like construction, healthcare, and manufacturing, employers can and probably should implement a drug-testing program to ensure the safety of the business and its workers. However, private-sector employers outside of safety-sensitive industries should reevaluate their existing drug-testing policies or hesitate before implementing a policy.
As drug-testing laws evolve and change, so do workers’ outlooks on these practices. Perhaps a more achievable way to promote safety and productivity in the workplace is for employers to focus less on drug testing and more on performance and results, so employees have the freedom to live their private lives as they choose.
If drug-testing policies are an absolute must for your industry, check out HR Software Guide for solutions to help with your compliance concerns.
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