Can you ask job applicants and employees to submit to drug testing?
This is a question many employers face—but there’s no regulation to guide us at the federal level. There are, however, federal laws regarding intrusions on employee privacy, such as those that address unreasonable search and seizure. As such, employers must understand the laws at both the state and federal level in order to answer this question.
Let’s take a look at the most common regulations regarding drug screening of applicants and employees.
Why Would an Employer Ask for Drug Testing?
First, let’s understand why an employer may wish to require applicants and/or employees to submit to drug testing. Here are some of the reasons:
- Usually the most important reason is the employer’s obligation to provide a safe working environment. One component of this is ensuring to the best of the employer’s ability that other employees do not present a risk due to drug use. As such, an employer may want to require both applicants and employees to confirm via a drug screening that they are not under the influence of drugs. This is the primary basis for state laws that allow employers to request drug screenings.
- Some occupations require drug testing for public safety. Examples include those working in the transportation industry or in national defense.
- Employers can often receive discounts on workers’ compensation insurance by maintaining a drug-free workplace.
- Many employers want to test for drug use as a means to avoid many of the problems associated with drug and alcohol consumption, such as absenteeism or causing workplace accidents. Simply having a drug testing policy can act as a deterrent. It can also help discover those who may have a problem and allow them to get help before the situation gets worse.
- For some employers, such as those with government contracts or those who receive federal funds, drug testing may be required to comply with federal regulations.
Since the laws vary at the state level, our discussion of when drug testing is allowable will be kept general. Remember to check your local laws before proceeding with any official policies at your organization.
Drug Screening for Applicants
Most state laws do allow employers to ask applicants to submit to drug screening once they have met specific requirements. This usually includes advising the applicant of the drug screening requirement in advance and making an offer of employment before requiring screening (this offer can be contingent upon the drug screening results). The law usually requires employers to be consistent—treat all similarly situated applicants the same. In other words, the employer typically cannot require drug screening for only a select group of applicants for the same job. It is typically permissible, however, to require drug screening only for some jobs—especially when the employer has some jobs that are much more safety-sensitive than others.
Usually, employers must use only approved testing labs to process the results of the drug screening.
Drug Screening for Employees
When it comes to drug screening for employees, the laws become a little stricter and have more variation. For example:
- Some states will allow random drug testing for any employee, but other states will not allow this.
- Those states that prohibit random testing usually require instead that employers only test specific individuals—individuals are selected either due to the high-risk nature of the job in question or due to suspicion of drug use.
- Most states allow employers to require individuals to submit to drug screening after an accident on the job or after an incident that arouses suspicion. In cases where an employer has a suspicion of drug use, this suspicion cannot simply be used as a blanket excuse to conduct a drug screening. There must be reasonable suspicion—and the word “reasonable” is not always defined. However, many states do put guidelines around what can be considered suspicious behavior in this regard. Examples include:
- Behavior that indicates drug use, such as losing coordination, losing ability to speak without slurring words, acting overly agitated, or acting lethargic;
- Evidence of tampering with drug screening results; and
- Other evidence of drug use, such as reports of drug use by a reliable third-party (this may need to be confirmed before it can be acted upon).
- In some circumstances, drug testing may be allowed on a periodic (planned) basis.
Remember, most states do have drug testing laws. It’s important to understand the regulations in all areas where your organization operates.
Drug Screening Exceptions
Employers should remember that there are exceptions to the ability to deny an applicant or employee a job due to drug screening results.
- The organization may need to prove a business justification for the drug screening (in some local jurisdictions).
- If the drugs found were legally prescribed and within legal limits, and the drugs were prescribed to treat a disability, they often cannot be held against the individual because that could constitute disability discrimination.
- Employers must be consistent and not discriminate regarding who is asked to undergo drug screening. If one applicant for a specific role must do so, typically all must do so. Otherwise, that applicant could have a discrimination claim.
Does your organization conduct drug screening for all applicants? Or only for specific roles? What about employees? Let us know in the comments section.
This article does not constitute legal advice. Always consult legal counsel with specific questions.
About Bridget Miller:
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.
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