Many employers require drug testing as a condition of hiring and continuing employment. In fact, it is rare these days for an employment application not to forewarn an applicant of the employer’s intention to conduct a drug test before making an offer of employment.
Drug testing is carried out by some government employers and has become quite popular in the private sector as well. Therefore, employees should take an employer’s warning that drug testing is a condition of hiring seriously.
Definitions: A “failed” drug test means the lab found a banned drug in your sample above a set cutoff level. Labs use cutoff levels so that tiny trace amounts do not count as a positive result. If the first screening test comes back positive, the lab usually runs a second, more exact test to confirm it and rule out a false positive. Your employer’s drug testing policy should spell out the cutoff levels and confirmation steps it uses.
When Are Drug Tests Carried Out?
There are certain conditions under which employers engage in drug testing of job applicants and employees. Even applicants for jobs in private libraries must often undergo drug testing. Public libraries drug test, too, in light of the fact that children are often patrons of public libraries.
Many employers engage in drug testing in some way. Some of these include the following:
- Pre-employment: Employers consistently try to determine how best to weed out employees who may present a liability. Drug testing can identify problematic employees who are unable to perform their jobs while drug-free and who will increase insurance costs because of their drug use.
- It is entirely up to a job applicant to decide not to complete an application when the employer requires drug testing as a condition of employment. In the states that allow pre-employment drug testing, the potential employee is given notice of the testing, and the employer makes it clear that an offer and acceptance of employment are contingent on passing the drug test.
- Post-Employment: After an applicant has been hired, the employer may conduct random testing. Though random testing has been attacked as a violation of employee privacy rights, some states still allow this practice.
- Courts, in particular, have upheld the lawfulness of random testing in safety-sensitive workplaces and where testing is truly random. That is, the testing must not be directed at specific employees on the basis of some pretext.
- Cause-Specific: Employers may order drug testing to eliminate allegations that an accident resulted from drug use by an employee. For example, a drug test may be requested in connection with a worker’s compensation claim. The result of this drug test can significantly affect whether an employer receives the type of damages or amount demanded.
- Suspicion of Drug Use: If an employer or employee reasonably suspects another employee of drug use, the employer may demand testing. What amounts to reasonable suspicion is going to vary depending on the circumstances or state statute. However, employers may be willing to undertake such testing to reduce the potential for accidents in the workplace caused by the employee’s drug use or to prevent claims by other employees that their notifications of drug use were ignored.
Eligibility: Whether you can be tested often depends on your job and industry. Workers in safety-sensitive jobs, such as truck drivers, pilots, and heavy machine operators, face stricter testing rules under federal law. State law and the employer’s own written policy also control who can be tested and when. Check the policy to see if your position is covered.
These are just some of the conditions under which an employer may carry out drug testing. A person should consult their employee handbook as well as state and federal laws to learn more about what their employer can and cannot do. Each state may have different rules and laws for drug testing. For instance, failing a drug test in California may have different consequences than failing a similar test in another state.
State Variations: State rules differ widely. Some states, including California, Nevada, New York, New Jersey, and Connecticut, now bar employers from punishing workers for legal marijuana use away from work. New York goes further and blocks most marijuana testing of workers and applicants altogether. Other states give employers more freedom, and some require written notice or set testing procedures first. Always check the law in your own state.
Are There Specific Types of Drugs That Employers Typically Test For?
The situation will dictate what type of drugs the employee will be tested for. However, there is a list of drugs that employers typically test for, particularly in pre-employment scenarios. Most tests are conducted with urine analysis, which eliminates arguments against invasive testing.
The drugs for which employers most commonly test include the following:
- Amphetamines;
- Marijuana;
- Cocaine or crack; and
- Opioids like heroin, morphine, codeine, and oxycodone.
Process/Steps: Most workplace drug tests follow the same basic steps. First, the employer tells you a test is required. Next, you give a sample, usually urine, at a collection site. A certified lab then tests the sample. If the result is positive, a medical review officer (a doctor) reviews it and may ask about prescriptions that could explain the result. A second test on the same sample often confirms the finding before it is reported.
Are There Consequences if I Fail a Drug Test?
There may well be consequences for failing a drug test at work. Among the positive drug test consequences could be denial of employment. An employer can deny a job applicant employment or terminate their employment depending on the conditions of their hiring.
After a person has been hired, the employer may choose to continue their employment but decline to promote them until they pass the next series of drug tests. To learn more, a person should consult their employer’s policy and determine whether their employer has a zero-tolerance policy regarding drug use.
Costs/Fees: In most cases, the employer pays for drug testing, including pre-employment and random tests. If you dispute a positive result and ask for a retest, you may have to pay for that second test yourself, depending on the employer’s policy. For federally regulated workers, the retest must still go forward even if the worker cannot pay up front, though the employer may ask to be repaid later.
A person can be fired under some circumstances for failing an employer’s drug test. A person may want to talk to a local employment lawyer in their community about their company policy, state law that addresses the topic, and applicable federal law.
As for federal law, the Civil Rights Act of 1964 prohibits employers from choosing people to test based on protected classes, such as race, religion, or national origin.
The Americans With Disabilities Act prohibits discrimination against job applicants based on prior drug use or participation in a rehabilitation program. It also makes it illegal to single out people for drug testing because they appear to be under the influence. Behavior that seems to be caused by the use of a controlled substance may be related to a disability, illness, or medical condition.
State laws regarding the consequences of failing a drug test are different in different states, so it is important for an employer to follow state guidelines in response to an applicant’s failed pre-employment drug screen. For example, in Alaska, employers can use a failed drug test as grounds for not hiring an applicant. However, that candidate has the right to explain a positive drug test to the employer in a confidential setting.
Employers in Alaska can also refuse to hire an applicant if they do not submit to a drug test. An employer might decide not to proceed with a job offer for an applicant or a transfer or promotion for an employee due to a failed drug test. If this is the case, they must follow the adverse action process, as required by the federal Fair Credit Reporting Act (FCRA).
Risks/Penalties: Employers face risks too. An employer that breaks drug testing laws can be sued for wrongful termination, discrimination, or invasion of privacy. State and federal agencies can also issue fines. This matters for workers because an employer’s mistake during testing may give you grounds to challenge the result or any punishment that follows it.
Can You Get Arrested for Failing a Drug Test?
Generally speaking, a person would, in all likelihood, not be arrested after failing a drug test taken in connection with their employment.
The consequences of failing a drug test depend on the employer’s policies and state and federal law. If a job offer depends on an applicant passing a drug test, employers may withdraw a job offer if the applicant fails a pre-employment drug test. However, the employer must follow the steps required by federal law and the pre-employment drug testing laws of the state in which the applicant applies.
Before taking any action in response to a failed drug test, an employer wants to review its own drug testing policy and be sure to follow it. Also, the employer must adhere to all applicable state and federal laws.
The vast majority of employers would not notify law enforcement if an applicant or employee fails an employer’s drug test.
Can I Dispute the Results of a Drug Test?
If they test at all, most employers test for illegal controlled substances. Marijuana, for example, is a substance for which employers commonly test. However, with so many states now allowing the use of marijuana for recreational and medicinal purposes, the employer may be precluded from taking adverse action against the person when they test positive for marijuana.
Some states have approved the use of medical marijuana for the treatment of glaucoma, nerve pain, seizures, cancer, and other medical conditions. A person may raise this as a defense if the use of marijuana is legal in their state.
Evidence/Documents: To challenge a result, gather your proof early. Helpful items include copies of your prescriptions, pharmacy records, medical records, and receipts for over-the-counter medicines or supplements. Also ask for a copy of the test result, the chain of custody form, and your employer’s written drug testing policy. These documents help a lawyer spot errors and build your case.
Another possible basis for disputing a drug test is lab error. Though rare, it can happen, and whether there has been an employee error in executing a drug test or a “false positive” result might be the best possible defense for a positive drug test.
Timelines: Deadlines to dispute a result are short. Under federal rules for transportation workers, you have only 72 hours after the medical review officer notifies you of a verified positive result to request a retest of your split sample. Private employers set their own deadlines, and these are often just a few days. Read your employer’s policy and act fast once you learn of a positive result.
The Importance of Hiring a Lawyer: You may be able to clear up a simple issue on your own, such as a positive result fully explained by a prescription you can document. A lawyer becomes important when the result is disputed, the employer’s policy is unclear or may break state or federal law, or your job is on the line. Handling those situations alone risks missed deadlines, lost evidence, and a weaker case.
Should I Consult an Attorney About Drug Testing?
It is standard now for employers to make a successful drug test a condition of employment. Drug testing as part of continuing employment can be somewhat more complicated. If you are confused about what your rights are, consult an experienced employment lawyer. LegalMatch.com can put you together with an experienced attorney who knows about the drug testing laws in your particular state and can guide you through the options available to you.
