When Is a Drug Test Allowed?Drug testing is very common in the private sector and private employers generally have more leeway in their testing policies than government employers. Private employers usually are not required to obtain consent from employees to test, and employees are subject to sanctions if they refuse a lawful request for a drug test. Many courts do require some form of notice or warning that a drug test may be required during the course of employment.
Drug testing is allowed in the private sector in several situations: - Preemployment - Testing of job applicants is the most popular type of drug testing used by private employers. Courts have upheld preeployment testing by reasoning that employers have a right to seek qualified applicants that are drug free, and that applicants can choose not to apply for jobs that require testing if they do not wish to be tested.
- Reasonable suspicion - When employers reasonably suspect an employee of drug use, testing is allowed. What constitutes reasonable suspicion varies depending on the court, but common examples include observing drug use or physical symptoms of use, erratic behavior, or a report of use from a reliable source.
- Random testing - Random testing is often attacked as violating privacy rights and some states have statutes preventing random testing. However, many courts have upheld random testing, especially in safety-sensitive workplaces and in situations where there is no direct supervision of employees. The testing must be random and not directed at specific employees for alternative reasons.
- Postaccident - Postaccident testing usually impacts workers compensation claims. A positive test following an accident often creates a presumption that the accident was caused by intoxication that must be rebutted by the employee before he can claim compensation benefits.
What Rights Do Employees Have?While drug testing is allowed in many situations, employees do have some rights and expectations of privacy. - Employers must have a legitimate reason to test.
- Employees generally must be given notice.
- Employers cannot share information of drug tests with third parties.
- The drug test must be conducted by an approved laboratory under approved conditions.
- Depending on the court, the employee may have the right not to be observed while tested.
Do I Need a Lawyer?Drug testing issues are very complex and highly controversial. If you feel you have been wrongfully subject to a drug test or wrongfully discharged, an experienced employment lawyer can interpret the law in your area and advise you of your rights. A lawyer can also represent you in court. |
 |
