There are no workplace drug testing laws in Virginia that restrict employers’ right to require drug tests for employees and candidates for employment. Again, the fact that the recreational use of marijuana is legal in Virginia does not change the situation with respect to employee drug testing laws.
Virginia law gives employers significant freedom to do the drug testing they feel is necessary in their workplaces. However, they also want to respect all federal laws regarding discrimination, defamation, and invasion of privacy.
In Virginia, the recreational use of marijuana is now legal for adults older than 21. However, this does not affect the laws on employment drug screening. Virginia employers still have the right to test employees and job applicants for marijuana. They may impose adverse consequences on candidates and employees for positive test results. A local attorney in Virginia would be able to give a person more information.
A drug test is a chemical analysis of a biological specimen, commonly a person’s blood, breath, urine, or hair. The test is used to detect evidence of the presence or absence of specified drugs in a person’s body.
As in many other states, employers who maintain a drug-free workplace program get a discount of up to 5% on their workers’ compensation insurance premiums. So this gives employers an incentive to have workplace drug testing.
In Virginia, employers may test employees for the following controlled substances:
- Amphetamines,
- Cannabinoids,
- Cocaine;
- Phencyclidine (PCP);
- Methadone;
- Methaqualone;
- Opiates;
- Barbiturates;
- Benzodiazepines;
- Propoxyphene;
- The metabolites of these substances.
An employer might also test for alcohol intoxication through the use of blood alcohol content (BAC) tests of a person’s blood, breath, or urine.
What Are the Rules for Testing Current Employees?
For most employees, random drug testing is neither required nor prohibited. There is an exception for commercial driver’s license holders, ferry operators, and pilots. Employees who hold these positions are required to submit to random drug testing.
Otherwise, employers in Virginia may test employees for drugs. They may test job applicants for drugs. Employers may impose negative consequences on employees who test positive for drugs. Failing a drug test may lead to an employee’s firing. An employer may refuse to employ a job applicant who fails a drug test.
Drug testing in the mining industry must be done at laboratories certified by the Substance Abuse and Mental Health Services Administration (SAMHSA) in compliance with all SAMHSA drug-testing guidelines. There are no legal restrictions for private employers regarding how they should choose the laboratory for their testing.
Can I Refuse a Drug Test at Work?
Virtually every state allows employers to require drug testing of job applicants. Virginia allows this type of testing also. If a person tests positive, an employer may refuse to hire the applicant because they tested positive.
Some states limit the situations in which an employer may require testing of current employees. Virginia law allows employers to engage in random testing and any other lawful type of workplace drug testing. Employers are under no obligation to accommodate the use of medical marijuana by employees. They are free to implement zero-tolerance policies for both on- and off-duty use of drugs, and they may punish employees who violate their policies.
Of course, an employer may not physically force a person, either a job applicant or an employee, to take a drug test. However, while an applicant has a right to refuse a drug test, the employer has the right to refuse them 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.
If an employee objects to drug testing, they would want to become familiar with their employer’s drug-testing policy. They might be able to avoid any drug testing that is not done in compliance with the employer’s own stated policies. Otherwise, however, refusing to take a drug test at work could lead to negative consequences, including loss of one’s employment.
What Are the Consequences of Refusing to Take a Drug Test?
In Virginia, the consequence of refusing to take a drug test mandated by an employer depends on the drug testing policy of the employer. If the employer asks an employee to take a test, the employee would want to know on what grounds they might refuse testing per their employer’s policy.
Legally, however, an employer may subject a person who refuses drug testing to disciplinary action. Disciplinary action may include termination of the person’s employment. A person will want to contact an employment law attorney if they have any questions about these rules, especially regarding government employee drug testing laws.
Are There Any Exceptions?
In Virginia, employers are not allowed to “discharge, discipline, or discriminate against” employees who are lawfully using cannabis oil with a valid prescription. However, workplace drug testing law in Virginia does not prohibit employers from taking adverse actions against employees who are impaired at work due to the use of cannabis oil. Also, employers may prohibit employees from using cannabis oil during work hours.
This same exception applies to Virginia state government employee drug testing. It prohibits imposing negative consequences on state government employees who use products containing cannabis oil with a valid prescription.
Note that if an employee does not have a prescription and they are not using cannabis oil lawfully, their employer could impose negative consequences, including firing. A cannabis product is a product that contains CBD up to 10 milligrams of THC per dose. This is the current Virginia cap. Such a product is legal if it is produced, sold, and tested through the state’s medical cannabis program.
The federal Americans with Disabilities Act (ADA) does not prevent employers from enforcing drug-free workplace policies or otherwise testing employees for drug use. It does not offer any kind of protection to employees who are using illegal drugs.
However, the ADA does make it illegal for employers to engage in employment discrimination against recovering alcoholics and drug users who are already receiving treatment for their addiction.
Also, under the terms of the ADA:
- Employers are prohibited from firing, refusing to hire, or refusing to promote a person because they have a history of substance use;
- Employers are also prohibited from firing, refusing to hire, or refusing to promote employees because they are enrolled in a drug or alcohol rehabilitation program.
Employers who have drug-testing programs want to be careful not to focus on employees for testing because they look or act as though they are under the influence of drugs or alcohol. Many of the physical symptoms usually associated with alcohol and drug intoxication, e.g., slurred speech, disorientation, or a lack of coordination, can also be the result of a serious physical disability or medical condition.
People with disabilities or conditions that might mimic intoxication are protected by the ADA. Selective drug testing could lead to claims of discrimination.
Finally, employers should not ask employees about their legal prescription drug use in connection with any type of drug-testing process. Some state courts have ruled that requesting information of this kind constitutes a form of discrimination and violates the ADA.
While challenges to drug testing or drug-free workplace policies under Title VII of the Civil Rights Act are rare, employers should make sure that their programs treat all workers equally. Employers want to avoid singling out employees of any particular age, race, ethnicity, or gender for testing or disciplinary action so as to avoid violating Title VII of the federal Civil Rights Act.
Again, a person would want to review their employer’s own policies, if the employer has them, to see if it allows exceptions. And it is important to keep in mind that an employer’s policies may provide that if a person takes and fails a mandatory drug test, the employer would not fire the person but would refer them to treatment or counseling.
Do I Need an Attorney if I Refuse to Take a Drug Test?
If you have refused a drug test at work, you want to contact a Virginia discrimination lawyer as soon as possible. LegalMatch.com can connect you to an experienced lawyer who can review your employer’s policy and tell you what your rights are. Employment law matters can be complex, but a lawyer can provide you with the representation and guidance needed for your case.
If you have not been tested but are concerned about it, you also want to consult a Virginia lawyer. Your lawyer can review your employer’s drug testing policy and tell you what rights you have under that policy.
