Employers are subject to certain rules, laws, and protocols when it comes to Workplace Drug Testing. As a practical matter of business, all employers should have a drug and alcohol policy stated in their employee handbook, as well as a statement they are a drug and alcohol-free workplace. Pursuant to Federal Law, all employers that accept federal money, grants, jobs, and contracts, must be drug free or lose their connection with the federal government.
Workplace Drug Testing is not a highly regulated practice. This creates much ambiguity and confusion in its application and interpretation. Federal law does very little to address the process of Workplace Drug Testing other than having rules in place that it should not be done in furtherance of discrimination. Federal law does address drug and alcohol testing for specific industries. For instance, the Department of Transportation (DOT) has requirements for testing commercial truck and bus drivers; and the Americans with Disabilities Amended Act addresses drug and alcohol testing and discrimination when it comes to legally prescribed medication for a disability or alcohol that may show up in a test.
Some states have specific laws pertaining to Workplace Drug Testing. Pennsylvania, New Jersey, and Delaware are not states that have any such laws.
Federal and State Courts as well as the Equal Employment Opportunity Commission, have provided certain guidelines and rules for drug/alcohol testing done by employers. Such as:
- If an employer chooses to do pre-employment testing, they must test all applicants, or all applicants for a specific position/duty. For example: all hourly employees, all drivers and heavy equipment operators, etc. Employers may not pick and choose who to test based on education, demeanor, race, religion, or other personal characteristics.
- Pre-employment testing must be done by a certified medical lab; it cannot be conducted via a kit purchased by the employer. However, testing for reasonable suspicion (the appearance on the job of being under the influence), or post-accident testing can be done via employer purchased kits. Also, employers must be vigilant regarding the privacy of how the test is conducted and how the results are stored, handled, and communicated.
- Employers also should give notice of the testing in the job posting, job description, application, contract, etc. If a job offer is contingent on passing a drug test, that should also be clearly communicated to the employee.
Types of Drug Testing
Pre-Employment – This testing is done to prevent the hiring of individuals using illegal and illicit drugs. Whether pre-employment testing is conducted depends on the employer and/or industry. Industries that present high risks to the public, other employees, and customers such as construction, commercial driving, security, manufacturing, and chemical plants are likely to conduct pre-employment drug testing. Some employers simply do it as a best practice and as part of the company’s strong commitment to a drug free workplace.
Under the ADAA, an employer cannot conduct pre-employment testing for alcohol. Under the ADAA alcoholism is considered a classification of disability that then requires certain accommodations and actions by the employer; also, responsible use of alcohol in one’s personal life is permitted, therefore, unless there is evidence of it occurring while in the course of employment, it cannot be used as a reason to employ or not employ. Employers may test for alcohol due to reasonable suspicion of use while at work, post a work related accident, and in random testing.
Lastly, if a potential employee’s test reveals evidence of legally prescribed drugs, the employer can inquire about the drugs impact on the individual and performance while at work. If the impairment will or may cause issues while at work, the employer has protections regarding not hiring the individual even though the medicine is legally prescribed and for a protected illness/disease/disability.
Random – Random testing can include both drugs and alcohol. This type of testing occurs on an unannounced and unpredictable basis. Those being tested should be chosen via an arbitrary and computer-generated process, and preferably by a third party. This type of testing cannot have a discriminatory purpose, nor be done for any reason other than keeping the workplace safe and free from alcohol and drug use. Random drug & alcohol testing is common in the construction industry and for commercial truck drivers as well as other high risk industries.
Post-Accident – Employers may have a policy of drug and alcohol testing after any workplace accident to determine a cause and how to prevent the accident in the future. This policy should be written and communicated to employees and have objective criteria that triggers the test after an accident. It should be clear if the testing is for any accident whatsoever, or list criteria for the type of accidents that trigger the testing.
Periodic – This type of testing may be established by the employer on a consistently scheduled or annual basis. It must be administered across the board and announced in advance to employees. For example, an employer may have a policy that each year on the anniversary of an employee’s employment he/she must submit to a drug and alcohol test.
Return to Duty – If an employee has tested positive for drugs or alcohol but is permitted to continue employment during or after participation in a treatment program, the employer may require another test, or ongoing tests for clearance to return to work. The employer can choose to have the cost of the additional or continued drug testing be the employee’s responsibility.
Termination or discipline due to a failed test is within the employer’s discretion. An employer is within their rights to discipline or terminate employment due to a failed drug and alcohol test. However, they may choose to allow for treatment and subsequent tests to determine continued employment. In this decision process, employers may consider things such as: tenure with the company, performance record, type of position, etc.
Reasonable Suspicion– There is no clear definition or set of guidelines for employers about reasonable suspicion of drug/alcohol use in the course of employment; therefore, a clear written policy pertaining to this type of testing should be in place. Reasonable Suspicion testing arises when the employer has a “reasonable suspicion” that an employee is at work under the influence of alcohol or drugs. Making this determination must generally be based on facts and logical inferences/conclusion, not based on hunches, innuendo, and gossip. Examples creating “reasonable suspicion” may include:
- Direct observation of drug use or its physical symptoms such as smell, slurred speech, agitation, lethargic demeanor, uncoordinated movement, or inappropriate responses to questions;
- Abnormal conduct or erratic behavior while at work or significant deterioration of work performance;
- Reported drug use by a reliable and credible source that has been independently corroborated by the employer;
- Information that the employee caused or contributed to an accident at work;
Evidence the employee has used, possessed, sold, solicited, or transferred drugs while working.
Employee’s Reaction to Notice of a Test or Having a Positive Test
As an employee you may always refuse to submit to Workplace Drug Testing, however, if you are fired due to the refusal you have little recourse against your employer. The only way you may have recourse is if you have evidence the test was required for discriminatory purposes or you were treated differently than other similarly situated employees. Also, obtaining unemployment benefits may be difficult based on a refusal if it was clearly stated as a work rule, or the employer can show they had reasonable suspicion to request the drug test.
If you fail a Workplace Drug Test pre or post-employment, the employer has the right to not hire you, or immediately terminate your employment assuming no discriminatory reasons are present in the testing or decision.
The exceptions are if you test positive for a legal drug being taken for a medical ailment or disability, alcohol, and in some states/cities marijuana. In those instances, the employer may have to take other preventative actions, allow for accommodations or leave, or do further investigation to determine if the level of drugs or alcohol is consistent with recent use (on the job or right before starting work), or may just be from residual use while not at work and not within a time frame creating possible impairment at work.
Current laws legalizing the recreational and medical use of marijuana create serious questions, concerns, and challenges for employers. Therefore, next week I will focus my post on the impact of legalizing recreational and medical use of marijuana upon Workplace Drug Testing.
As always, that you for reading, and if you have any questions or concerns regarding this topic or any other legal topic, please feel free to contact me.
Until next week . . .
– Paul
