The federal government and many state governments have enacted policies prohibiting drug use in the workplace, and the federal government also requires certain private sector companies to follow their anti-drug policy under the Drug-Free Workplace Act. In order to enforce these policies, workplaces engage in subjecting employees to drug tests. Employees, especially those in public employment, have rights entitling them to due process protection when faced with discipline or discharge for drugs. The right to be exposed to fair testing policies are derived from constitutional sources as well as from the right to contract, to engage in the common occupations of life, and to maintain one’s employment and standing in the community.

What Rights Procedurally Should Every Government Drug Testing Policy Provide?

All employees have a property interest in continued employment. In this context before an employer can fire an employee, it must provide the individual with procedural rights before termination and a prompt adversarial hearing after employment termination. The requirement of notice and opportunity to be heard prior to termination requires the employer to give the employee notice of the nature of the charges, the nature of the government’s evidence, an opportunity to inspect that evidence and an opportunity to submit an argument as to why the employee should not be dismissed.

In Substance, What Rights do Government Employees Have When Drug Tested?

In substance the basic drug testing protections are as follows:

  • All employees should have notice of drug testing prior to implementation of or exposure to the testing program.
  • All employees should be entitled to test accuracy including having an initial test confirmed by a method of great or equal sensitivity.
  • All employees who test positive should be able to have a hearing or other chance to contest the test results.

What Elements Should all Government Drug Policies Have Included in Them?

The following is a list of the required elements of all government testing policies. Failure to comply with these elements may result in an invalid policy thus invalidating test results for due process reasons.

  • Statement of need for substance abuse testing (i.e. for work standards and health, employee and/or public safety, workplace security, and company reputation or public trust).
  • Position statement stating the company’s position on substance abuse.
  • List of employee rights and the company’s responsibilities to employees (i.e. Notice of testing, drugs tested for, due process, and chain of custody).
  • Employer’s rights such as discharge and discipline for refusal to take a test or for a positive test result.
  • Consequences for violating the policy.
  • Procedures for test administration.
  • Disclaimer of contract to avoid giving employees contract rights under the policy.

What Confidentiality Rights do Government Employees Have to their Testing Results?

An employer and the laboratory must have confidentiality and reporting procedures. All information, interviews, reports, statements, memoranda, and test results, written or otherwise, received by the employer or a laboratory through a substance abuse testing program should be considered confidential communications. Confidentiality procedures not only protect employees, they protect employers from being sued for defamation or other torts if an inaccurate test result on an employee is released.

Note that laws may vary from state to state. For instance, California drug testing policies may have slightly different requirements from those in other states.

Should I Contact a Lawyer Regarding What I Believe is a Wrongful Discharge for Drug Use?

Particularly, if you believe that the government has failed in their duty of confidentiality or duty to provide you with a fair drug testing policy, you should contact an employment lawyer regarding what is potentially a wrongful discharge. Drug testing policies for government and non-government employees alike is highly controversial and an experienced employment lawyer may be able to investigate your situation and help you get your job back.