The state of Pennsylvania does not have any state employee drug testing laws that restrict or regulate drug testing by private employers. Of course, federal laws apply in Pennsylvania, but federal law also does not place any significant restrictions on private employers’ drug testing.
In fact, drug testing is required by the federal government in certain industries in which safety is of special concern, e.g., transportation, aviation, NASA contracting, and the Department of Defense. However, outside of these industries, federal law neither requires nor prohibits drug testing.
Pennsylvania gives employers the right to develop drug-free workplace policies that include drug testing of employees. Employers who require employee drug testing must notify their employees of any potential disciplinary actions. Also, employers must make sure that only authorized personnel have access to drug test results and related information. This is to ensure the confidentiality of testing information.
Medical marijuana is legal in Pennsylvania, and state law does protect medical marijuana users from discrimination if they fail marijuana drug tests. However, state law does not require employers to permit marijuana use in the workplace, even if an employee is an approved medical marijuana user.
An employer would be well advised to adopt a policy for drug testing and make sure that its employees are notified of what the drug-testing policy is and what the consequences are for refusing testing as well as for failing a drug test.
Random testing is possible, but selective drug testing without any policy in place could result in the employer running into trouble with the federal Americans with Disabilities Act (ADA) and the Civil Rights Act (CRA), as explained below.
A local Pennsylvania attorney would be able to help an employer draft a policy for drug testing of their employees that complies with all state and federal laws.
What Are the Rules for Testing Current Employees?
A drug test is a chemical analysis of a biological specimen, commonly a person’s blood, breath, urine, oral fluid, or hair. The test is used to detect evidence of the presence or absence of specified drugs in a person’s body. Major applications of drug testing by employers involve detection of the drugs prohibited by law, such as cannabis, cocaine, methamphetamine, and heroin.
An employer might also test for alcohol intoxication through the use of blood alcohol concentration (BAC) tests of a person’s blood, breath, or urine.
Among the substances for which employers routinely test are the following:
- Amphetamines;
- Cannabinoids;
- Cocaine;
- Phencyclidine (PCP);
- Methadone;
- Methaqualone;
- Opiates;
- Barbiturates;
- Benzodiazepines;
- Propoxyphene;
- The metabolites of these substances;
- Improved job performance by employees;
- Fewer job-related accidents;
- Reduced absenteeism;
- Improved morale among employees; and
- Increased customer satisfaction.
Pennsylvania employers are likely to test employees for drug use in several situations including:
- After an accident has taken place at a job site;
- On the basis of having a reasonable suspicion that the employee has used drugs;
- When an employee resumes working after having a positive test on a previous occasion.
Of course, failing a drug test puts a person in the position of having to deal with negative consequences in their workplace that may include losing a promotion or getting fired. However, a person may not be denied Pennsylvania unemployment benefits solely on the grounds that they failed a drug test.
Can I Refuse a Drug Test at Work?
The vast majority of states allow employers to require drug testing of both job applicants and employees. It is allowed in Pennsylvania. Generally, an employer may refuse to hire an applicant because they test positive on the employer’s drug test. A current employee who tests positive could suffer negative consequences including firing.
Of course, an employer does not have the legal right to physically force a person to take a drug test. That is true for both applicants and employees. An applicant has a right to refuse a drug test, and an employer has the right to refuse a job for that reason. If it is a current employee who refuses a legitimate test, the employer may impose sanctions up to and including firing, as long as the employee has been notified of this possibility.
If an employee knows that they do not wish to engage in any drug testing at work, they should become familiar with their employer’s drug-testing policy. A person might be able to refuse drug-testing that is not done according to an employer’s existing policy.
Otherwise, however, if an employer wants to test in a way that its policy permits, an employee would want to submit to the testing or understand that their job may be at risk.
What Are the Consequences of Refusing to Take a Drug Test?
The potential consequence of refusing drug testing at work depends on the drug testing policy of the employer. However, legally, an employer may impose negative consequences on an employee who does not comply with the employer’s drug testing. Disciplinary action may include termination of the person’s employment.
A person should contact a lawyer if they have any questions about their employer’s drug testing procedures, especially about government employee drug testing laws.
Are There Any Exceptions?
The federal Americans with Disabilities Act (ADA) does not expressly prohibit employers from enforcing drug-free workplace policies. It does not prohibit employees from testing employees for drugs. It does not offer any kind of protection to employees who are using illegal drugs.
However, the ADA does make certain actions on the part of employers illegal. For example, it is illegal for employers to practice employment discrimination against alcoholics who are in recovery and drug users who are receiving treatment for their drug use problem.
Also, the ADA does provide as follows:
- Employers may not fire, refuse to hire, or refuse to promote a person on the grounds that they have a history of using controlled substances;
- Employers are also prohibited from firing, refusing to hire, or refusing to promote employees because they are in rehabilitation for drug or alcohol abuse.
Employers who have drug-testing programs want to be careful not to focus on employees for testing solely for the reason that they act as if they are under the influence of drugs or alcohol. This is because the physical symptoms of intoxication, such as slurred speech, disorientation, or a lack of coordination, can also be the symptoms of physical disability or a medical condition.
An employer does not want to discriminate against any person on the basis of their physical disability or medical condition. The ADA protects people with disabilities or conditions that might make them appear to be intoxicated. If an employer tests them or disciplines them, it could lead to claims of discrimination.
Finally, employers should not question employees about taking legal prescription drugs. While the case law in this area is still developing, some state courts have ruled that requesting information of this type may constitute a form of discrimination and violate the ADA.
Challenges to drug testing or drug-free workplace policies under Title VII of the Civil Rights Act are not often made, employers should make sure that their programs treat all workers in an equal manner. Employers want to avoid singling out employees on the basis of their race, ethnicity, or gender for testing or disciplinary action, so as to avoid violating Title VII of the federal Civil Rights Act.
Do I Need an Attorney if I Refuse to Take a Drug Test?
If you have refused drug testing at your workplace or have tested positive for a drug, you want to talk to a Pennsylvania discrimination lawyer as soon as possible. LegalMatch.com can quickly connect you to an experienced Pennsylvania lawyer who can analyze the facts of your case and tell you what your rights are under the circumstances.
You may be concerned about drug testing by your employer or prospective employers. If this is the case, you should talk to a Pennsylvania discrimination lawyer so that you know what your rights are before you are asked to submit to testing. This may put you in a position to avoid making mistakes that could cost you a job in connection with drug testing.
