Pre-Hiring Drug Testing

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 Is Pre-Hiring Drug Testing Legal?

It’s not uncommon for employers to perform pre-employment drug testing on job candidates as part of the hiring process. Why? Drug tests help catch the recent use of illegal and prescription drugs that may affect a candidate’s ability to perform their job and keep a secure workplace. But with rapidly changing laws—like the legalization of recreational and medicinal marijuana in some states—it can be hard for hiring managers to stay up-to-date about recent pre-employment drug test laws.

In many cases, pre-hiring drug testing is legal. But for most private employers, a drug test is not required by law, and workers can refuse the drug test if they desire (though they may be disqualified from being hired).

On the other hand, some jobs require prospective workers to submit to a drug test. Typical examples of such jobs are federal jobs and jobs that require the operation of a vehicle (such as the trucking and aviation industries).

In most circumstances, you aren’t required by law to submit to pre-hiring drug testing. Nevertheless, it is legal for an employer to condition employment on a drug test. That is, it’s usually legal for the employer to deny an applicant work based on their refusal to take a drug test.

What If I’m Asked to Take a Drug Test Before I’m Hired?

If you are asked for pre-hiring drug testing, you should be mindful of several factors concerning the drug test. Any employer who requests a prospective worker to take a drug test must do so in a way that obeys state and federal employment laws. It’s common for employers to infringe on the drug screening process, often without the applicant even knowing that their rights were violated.

If you’re being asked to take a drug test before you’re hired, you should take the following steps:

  • Notify the employer if you’re taking any prescription drugs: Some prescription drugs can appear on a drug test and be confused with illicit substances. Be sure to notify the employer of any prescription medications you’re taking.
  • Be aware of discrimination: If you notice specific ages, sexes, races, or genders being singled out for drug testing while others aren’t, it could be deemed discrimination.
  • Be aware of state requirements: Some states only permit drug testing if the individual has been offered employment first. Other states require employers to provide written notice that a drug test is needed or state so in any job postings.
  • Protect your privacy: If you’re asked to submit a urine sample in front of other individuals or to remove your clothing in front of other individuals, this could be an invasion of privacy.

Therefore, drug testing must be conducted to conform to state and federal laws. If you feel that your rights have been infringed in the process, it may be possible to file a legal claim against the prospective employer.

What Drugs Can an Employer Test For?

Employment drug testing regulations allow testing for all drugs and alcohol. Nowadays, many employers require workers to submit to a drug test before and after being hired. Most employers use urinalysis to test for five classes of illicit drugs:

  • Amphetamines such as speed, meth, crank, and ecstasy;
  • THC such as hash, cannabinoids, and marijuana;
  • Cocaine: powder cocaine and “crack” cocaine;
  • Opiates: heroin, morphine, opium, codeine;
  • Phencyclidine: PCP and angel dust;
  • Alcohol.

Many private employers have no limit on the number of drugs they can test. Some employers also test for additional drugs such as prescription barbiturates, methadone, ethanol, hallucinogens, LSD and psilocybin, and inhalants.

What Is the Americans With Disabilities Act of 1990 (ADA)?

The ADA prohibits employers from discriminating against candidates with physical disabilities. It makes it illegal for hiring managers to discriminate against those who have a history of substance abuse, are recovering from substance abuse, or are currently enrolled in a rehabilitation program for drug testing specifically.

Under the ADA, candidates also cannot be singled out for drug screenings because they may appear to be under the influence of alcohol or drugs. Some of the signs and symptoms of being under the influence may be related to a disability, disease, or medical condition.

What Are the Most Common Drug Test Methods for Employment?

In U.S. workplaces, employers that conduct pre-employment drug screening do so with urine, hair, blood, or saliva tests.

Urine Tests
Urine tests are the most standard pre-employment drug test employers use in the U.S. Nevertheless, they also have a shorter detection window than the other types of drug tests. Urine tests detect substances from 5 to 10 days.

Generally, an employer will extend a conditional job offer to a prospective employee contingent on the applicant passing the drug screening.

The applicant will be asked to provide a urine sample, which will undergo an initial screen. If the initial screen shows the presence of a drug, a verification screen will be conducted before the results are provided to the employer.

Urine tests may also be used in random testing programs for existing workers and when employers have reasonable suspicion that an employee might be using illicit drugs.

Urine tests tell employers whether an employee has recently used drugs. For employers that conduct drug screens under federal mandate, urinalysis is the only authorized method often chosen by non-regulated and regulated employers.

Hair Tests
Hair tests have a lengthy detection span and can detect drug use from up to three months before the testing date. Hair testing only detects past drug use and will not return results for alcohol.

Blood Screens
Some employers use blood drug tests to screen applicants or workers for illicit drug or alcohol use. A sample of blood is drawn by a licensed phlebotomist and sent to a lab for testing.

What About Potential Employees Who Use Medical Marijuana For a Disability?

Generally, even if the recreational use of marijuana is legal in the state where a person lives, a person can be denied a job for using marijuana. The same is true for alcohol; alcohol is legal, but a person cannot drink alcohol at their place of employment. Whether use outside of working hours is restricted would depend on state law and an employer’s policies.

State law regarding medical marijuana use is uncertain as state law regarding the legality of marijuana, whether for medicinal purposes or recreational purposes is in flux. A person who uses marijuana for medical purposes might be in a better position if they were to have a prescription for the marijuana from a licensed physician and consume the marijuana in a manner consistent with prescription directions.

However, in most states, the law on this point is not certain. Also, a person with a disability who uses marijuana for the disability may want to consult with an experienced employment lawyer about the possible effect of marijuana use on their employment status.

Are There Any Exceptions or Exemptions for Medical Marijuana Users?

In a case in Massachusetts, a court reportedly suggested that an employer may not necessarily be able to terminate the employment of a disabled employee who uses marijuana for medicinal purposes. Rather, the court stated that an employer should work with the employee to see if it can either accommodate the medical marijuana use or if it would impose an undue hardship on the employer. This guidance is hardly crystal clear, and it applies only in Massachusetts.

Do I Need a Lawyer For Help With Issues Regarding Pre-Hiring Drug Testing?

Employment laws can differ from state to state. The rules covering pre-hiring drug testing will depend on the type of job and the area you’re located in. If you have any disputes or legal issues involving pre-hiring drug tests, you should contact an employment lawyer in your area. Your attorney will be able to discuss your legal rights with you and can help you file a claim if a lawsuit becomes necessary.

Law Library Disclaimer


16 people have successfully posted their cases

Find a Lawyer