Many private employers engage in drug testing, and private employers generally have more leeway in their testing policies than government employers. Private employers usually do not need to obtain consent from employees to test, and employees are subject to sanctions if they refuse a lawful request for a drug test. Some courts do require that employers provide employees with some manner of notice or warning that a drug test may be required during the course of employment.
Union members do not have to submit to drug tests unless the testing programs are negotiated and specifically addressed in union contracts. If drug testing is allowed in a union contract, then union members would need to comply with procedures agreed to in the contract.
Some states have laws that may limit an employers’ rights to subject employees, both those working for them and those who are applying for employment, to drug testing. Other states require employers to institute drug testing programs or award them preferences for doing so. Some examples of state approaches to drug testing by private employers are as follows:
- California: In order to win state contracts or grants, employers must certify that they will provide a drug-free workplace. As a practical matter, this requires them to institute a drug-testing program. Contractors also must provide their employees with a written policy regarding their testing program, so the employees are on notice;
- Florida: Again, like California, Florida law gives a preference in awarding state contracts to contractors who have an express drug-free policy in their workplaces. Also, employers with drug-free workplace policies are given a discount on their workers’ compensation insurance premiums;
- Illinois: Illinois has no state law regarding drug testing by private employers;
- New York: New York has no state law regarding drug testing by private employers; New York state courts have approved of random drug and alcohol testing of city bus drivers, police officers and corrections officers;
- Texas: Texas law requires employers with more than 15 employees (and workers’ compensation coverage) to adopt a workplace drug reduction policy. The employer may choose their policy, but they must have one.
Employment drug testing laws in most states allow drug and alcohol testing in the private sector in the following situations:
Pre-Employment: Testing of job applicants or a selected applicant before hiring is the most popular type of drug testing used by private employers. Courts have upheld the legality of pre-employment testing by reasoning that employers have a right to seek qualified applicants who are drug free. Applicants can always choose not to apply for jobs that require testing, if they do not wish to be tested;
Reasonable Suspicion: Testing is allowed when employers reasonably suspect an employee of drug use. What constitutes reasonable suspicion varies depending on the court, but common examples include observing an employee’s drug use, an employee showing physical symptoms of use, an employee’s erratic behavior, or a report of an employee’s use of drugs or alcohol from a reliable source.
Random Testing: Random testing is often challenged as violating employee privacy rights and some states have statutes banning random testing. However, many state courts have approved of random testing, especially in workplaces where safety is a special concern and in situations where employees are not under direct supervision. The testing must be truly random and not targeted at specific employees. Employees who agree to periodic or random drug testing when they take a job and later choose not to participate are subject to the consequences in the company’s drug and alcohol policy, which may include termination.
Testing after an Accident and Worker’s Comp Claims: Testing for intoxication with drugs or alcohol after an accident can impact a person’s worker’s compensation claim in some states. For example, in Florida a positive test following a workplace accident can create the presumption that the accident was caused by the employee’s intoxication. The employee then must rebut the presumption in order to win worker’s compensation benefits. It is important to understand that an employee can lose their right to worker’s compensation benefits if they are in an accident at work while intoxicated with drugs or alcohol.
What Drugs Can My Employer Test For?
Employment drug testing regulations allow testing for all drugs and alcohol as well. Nowadays, many employers require employees to submit to a drug test both before and after they are hired. Most employers use urinalysis to test for five classes of illicit drugs:
- Amphetamines such as speed, meth, crank, and ecstasy;
- THC such as hash, cannabinoids, and marijuana;
- Cocaine: powder cocaine and “crack” cocaine;
- Opiates: heroin, morphine, opium, codeine;
- Phencyclidine: PCP and angel dust;
- Alcohol.
Many private employers have no limit on the number of drugs for which they can test. Some employers also test for additional drugs such as prescription barbiturates, methadone, ethanol, hallucinogens, such as LSD and psilocybin, and inhalants.
What Happens If I Fail an Employment Drug Test?
Each state or municipality has its own rules regarding drug testing in the workplace and the consequences for failing or refusing a workplace drug test. If a person fails a pre-employment drug test, the company may refuse to hire them. If a person fails a drug test while employed, their employer may terminate their employment or refrain from promoting them.
The only exception to testing a person after they have been employed may lie in state law, which might require a company employer to give its employees notice of the fact that they may be tested for drugs or alcohol and what the consequences of failing the test or refusing it are. Or, state law may not require notice and a statement of consequences as a matter of policy.
The state in which a worker lives may also deny them unemployment benefits, workers’ compensation benefits, or disability benefits for failing a workplace drug test. However, the consequences of failing a drug test vary by state, and the consequence of failing a drug test often depends on the employer.
If a person signs an agreement upon employment to submit to testing at the employer’s discretion, an employee probably cannot refuse a workplace drug test. Refusing to test can have adverse consequences. If the employee is terminated based on the company policy for refusing a drug test, the employee most likely would not win a lawsuit against their employer for wrongful termination.
If a person is concerned about drug testing on the job, they should look into a company’s policy in this area. Some things to look for in the policy are as follows:
- Whether there is a zero tolerance policy or whether it allows employees a certain number of “strikes”, so to speak;
- Whether the policy applies only to work premises or off work premises as well
- Whether the company tests randomly, after an accident, or only upon reasonable suspicion.
Also, the policy should specify the consequences of failing a test or refusing to take the test.
As noted above, some states promote testing of employees for drug and alcohol use after an accident happens in the workplace. If the results are positive, it can have a negative impact on the employee’s claim for worker’s compensation. Some examples of states in which post-accident testing for drugs or alcohol can have a negative impact on a person’s worker’s compensation claim are as follows:
California: If an employer can show that an employee was intoxicated and the intoxication was the cause of their injury, it is a complete defense to the employee’s claim for worker’s compensation. Of course, producing a positive drug or alcohol test is only one step in asserting the defense. The employer must also prove that the intoxication was the cause of the accident and therefore of the employee’s injury;
New York State: A failed drug test after a workplace accident does not automatically result in a denial of worker’s compensation benefits, but it can have that result. If the worker was taking a prescription drug and can show a legitimate prescription from a licensed physician for the drug, it is often acceptable. However, even the use of some prescription drugs could create barriers. In the final analysis, however, an employee’s drug test results show use of illegal controlled substances, such as meth or opiates, when there is an accident, the employee’s claim for worker’s compensation benefits can be denied;
Texas: There is virtually no limitation on the right of private employers to adopt drug and alcohol testing policies for their workers in Texas and to engage in testing. As for testing after a workplace accident, if a post-accident drug or alcohol test shows a level of an intoxicating substance, their worker’s compensation claim can be denied. While a worker might have their employment terminated if they refuse a post-accident drug or alcohol test, at least their worker’s compensation claim would not be denied, so a worker involved in a workplace accident would want to weigh whether or not to submit to the test;
Florida: State law in Florida encourages private employers to institute drug-free workplace policies and procedures. If an employer implements a Florida Drug-Free Workplace Program as specified in Florida law and is certified as a drug-free workplace by their insurance carrier, an employee who is found to have prescribed levels of certain controlled substances or alcohol in their system at the time of an accident might be denied workers’s compensation benefits.
Can Employees Who Use Medical Marijuana for a Disability Be Terminated?
Generally, even if the recreational use of marijuana is legal in the state where a person lives, a person can be fired for using marijuana on the job. The same is true for alcohol; alcohol is legal but a person cannot drink alcohol at their place of employment. Whether use outside of working hours is prohibited would depend on state law and an employer’s policies.
State law in the area of medical marijuana use is uncertain as state law regarding the legality of marijuana, whether for medicinal purposes or for recreational purposes, is in a state of flux. A person who uses marijuana for medical purposes might be in a better position if they were to have a prescription for the marijuana from a licensed physician and consume the marijuana in a manner that is consistent with prescription directions, although in most states, the law on this point is not certain. Also, a person with a disability who uses marijuana for the disability may want to consult with an experienced employment lawyer about the possible effect of the marijuana use on their employment status.
Are There Any Exceptions or Exemptions for Medical Marijuana Users?
In a case in Massachusetts, a court reportedly suggested that an employer may not necessarily be able to terminate the employment of an disabled employee who uses marijuana for medicinal purposes. Rather, the court stated, an employer should work with the employee to see if it can either accommodate the medical marijuana use or if it would impose an undue hardship on the employer. This guidance is hardly crystal clear, and it applies only in Massachusetts.
Both an employer and an employee would be well advised to proceed cautiously when it comes to testing disabled employees for drug use. If a testing program reveals that a disabled employee uses marijuana for medicinal purposes, the parties may wish to engage in discussion and negotiation and not take precipitous actions.
What Rights Do Employees Have?
Generally, employees have precious few rights when it comes to drug testing in connection with employment. For the most part, they have the right to take a test if the employer wants to test them and to accept the consequences of the test that the employer administers.
Most states allow private employers to test applicants for drug and alcohol use both before and after they are hired. In addition, they can be tested if they are involved in an accident. Some states have laws or policies that encourage private employers to institute drug and alcohol testing programs in their workplaces and to test their employees for drugs and alcohol.
If a person seeking employment does not want to be tested, they can choose not to apply to jobs with employers who test applicants or prospective hires. If they do not want to be tested while employed, they should find out what a prospective employer’s policy is regarding drug and alcohol testing and consequences for testing positive or refusing to test. They can choose to submit to testing, of course, and refrain from the use of drugs or alcohol on the job and probably in their free time as well as long as they are employed.
Do I Need an Employment Lawyer?
An experienced employment lawyer can advise you about the law in the state in which you live. A positive drug or alcohol test can have a number of strongly negative consequences on an employee, including termination of employment and possibly denial of unemployment or worker’s compensation benefits. It is a good idea to know the law in your state.
If you are an employer, having a drug testing policy may bring a number of benefits and it would pay to speak to an experienced employment lawyer about what kind of drug and alcohol testing policy can qualify you for benefits and advantages in the state in which you operate.
