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 of the employer’s intention to conduct a drug test before issuing 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 seriously the employer’s warning that drug testing will be a condition of hiring.
There are certain conditions under which drug testing may be conducted. Some of these include the following:
- Pre-employment: Employers are always trying to determine how best to weed out employees that 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 the 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 is contingent on passing the drug test.
- Post-Employment: After an employment 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 for pretextual reasons.
- 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 workers compensation claim. The result of this drug test can substantially impact 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. Reasonable suspicion will vary depending on the circumstances or state statute, but employers may be willing to undertake such testing to reduce the potential for work accidents caused by the employee’s drug use or to prevent claims by other employees that their notifications of drug use was ignored.
These are just some of the conditions under which an employer may carry out drug testing. You should consult with your employee handbook or state laws to learn more about what your 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.
The situation will dictate what type of drugs for which the employee will test. However, there is a list of drugs that employees typically test for, particularly in pre-employment scenarios. Most tests are conducted with urine analysis, which eliminates arguments against invasive testing.
The most commonly tested drugs include:
- Cocaine or crack; and
- Opiates like heroin, morphine, opium, codeine
Failing a drug test means an employer can deny you employment or terminate your employment depending on the conditions of your hiring. After you have been hired, the employer may choose to continue your employment but decline to promote you until you pass the next series of drug test.
To learn more, you should consult your employee policy and identify whether your employer has a zero-tolerance policy about drug use.
If they test at all, most employers will be testing for illegal controlled substances. Marijuana, for example, is a commonly tested drug. However, with so many states now allowing the legal use of marijuana for recreational and medicinal use, the employer may be precluded from discriminating against you when you use this drug.
Some states have approved the use of medical marijuana for the treatment of glaucoma, nerve pain, seizures, cancer, or irritable bowel syndrome. You can raise this as a defense if the use of marijuana is lawful in your state.
A lesser used defense is lab error. Though rare, it will happen and whether there has been employee error in running the test or a “false positive” result, you may be entitled to challenge the test.
It is pretty standard these days to include a successful drug test as 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.
An experienced attorney will be knowledge about the drug testing laws of your particular state and can guide you through the options available to you.