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 employee 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 Drugs Can My Employer Test For?
Nowadays, many employers require employees to submit to a drug test both before and after hire. Most employers use urinalysis to test for five illicit drugs:
- Amphetamines (speed, meth, crank, ecstasy)
- THC (hash, cannabinoids, marijuana)
- Cocaine (cocaine, crack)
- Opiates (heroin, morphine, opium, codeine)
- Phencyclidine (PCP, angel dust)
Many private employers have no limit on the number of drugs they can test. Some employers also test for additional drugs such as barbiturates, methadone, ethanol, hallucinogens, and inhalants.
What Happens If I Fail a Drug Test?
Each state or municipality has its own rules regarding drug testing in the workplace and the consequences for failing a drug test. If you fail a pre-employment drug test, the company may refuse to hire you. If you fail a drug test while employed, your employer may terminate your employment or prevent you from being promoted.
Your state may also deny you unemployment benefits, workers’ compensation benefits, or disability benefits for failing a drug test. However, not every jurisdiction or employer has a “zero tolerance” policy, and the consequence of failing a drug test often depends on the employer.
Can Employees Who Use Medical Marijuana for a Disability Be Terminated?
Twenty-three states and the District of Columbia have legalized the use of medical marijuana, while Alaska, Colorado, Oregon and Washington have legalized it for recreational use. With so many states recognizing legal use of marijuana, many states are now grappling with the issue of whether employers in those states are permitted by law to terminate an employee who uses medical marijuana for a recognized disability.
The Americans with Disability Acts (“ADA”) prohibits discrimination against individuals with disabilities for employment. These laws require employers to make “reasonable accommodations” for disabled employees to enable them to perform their job. Medical marijuana can be prescribed for glaucoma, cancer, HIV/AIDS, Crohns disease, and Multiple Sclerosis, or any other illness for which marijuana provides relief.
Three states have case law holding that medical marijuana cannot be considered a “reasonable accommodation” for a disability:
- California - In 2008, the California Supreme Court held that employers may fire employees for marijuana use, even if it is used for medical reasons, because marijuana is illegal under federal law.
- Michigan - In 2012, the Sixth Circuit held that medical marijuana users are not a protected class like race or religion, and that the medical marijuana laws of Michigan which permit its use only applied to state and local governments, not private employers.
- Colorado - In 2015, the Colorado Supreme Court ruled that an employee who used medical marijuana off-duty may be lawfully terminated for testing positive for marijuana. The court reasoned that marijuana is illegal under Federal law.
However, eleven states require accommodation provisions: Arizona, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Minnesota, Nevada, New Hampshire, New York, and Rhode Island. They all prohibit discrimination based on medical marijuana registration status and adverse action based on a positive test result absent work-related impairment.
While none of the laws either require employers to permit on-duty drug use or prohibit workplace drug testing, these anti-discrimination provisions raise questions about the validity of adverse employment actions based on positive drug tests in these states.
Are There any Exceptions or Exemptions for Medical Marijuana users?
The law allows private employers to have a “zero tolerance” policy for those who test positive for marijuana, even in states where it is approved for recreational use. Whether an employer enacts such a policy or makes an exception for medical marijuana users is at the employer’s decision.
For example, in San Francisco, taxi drivers are subject to drug testing. However, taxi drivers who have valid medical marijuana licenses will not suffer suspension or sanctions if testing positive for marijuana.
What Rights Do Employees Have?
While drug testing is allowed in many situations, and required by the federal government under the Drug-Free Workplace Act in some situations, employees do have some rights and expectations of privacy. Employee Rights when undergoing drug testing are:
- 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?
If you have been terminated over the results of a positive drug test, it may be helpful to discuss your situation with a qualified employment lawyer who handles wrongful termination issues. They may help you contest the results of the test itself, or pursue other remedies such as litigation if necessary.