In most states, employers have the authority to test job applicants for drug or alcohol misuse.
Employee drug testing using hair, urine, blood, or breath samples is now possible thanks to advances in technology. Typically, testing does not take place until the applicant has been formally hired.
“Selective Drug Testing” occurs when an employer selects a specific candidate, employee, or group of individuals for drug testing based on their qualities (such as race, gender, educational background, etc.).
In many circumstances, only one person or group is needed to submit to a drug test, while others are not. This differs from “random drug testing,” in which employees have an equal probability of being chosen for drug testing.
Selective drug testing may be a breach of workplace drug testing laws and employment laws, such as employment discrimination statutes. Discrimination may occur if the employee’s selection for drug testing is based on membership in a “protected class,” such as race, national origin, religion, gender, or political affiliation.
Several federal workplace drug testing laws govern drug-free employment.
Most private firms are not required to adopt any form of drug-free working policy. Federal contractors and grantees, as well as industries and occupations requiring safety and security, are exempt from this rule.
Federal legislation on drug-free workplace standards can be classified into two basic groups or categories.
Laws such as the Drug-Free Workplace Act of 1988 fall into this category. These laws are expressly intended to combat workplace substance abuse. They legally obligate certain types of companies to take action against workplace drug usage, such as adopting a written policy.
The other group comprises laws aimed at preserving American workers’ basic civil rights.
Certain types of employees are given particular legal protection under these statutes. They create explicit restrictions on how far an employer can investigate and impose sanctions for employee drug use.
The following are the most significant federal laws and regulations to be aware of:
Legal counsel is recommended for employers considering drug testing because lawsuits have been filed against employers for invasion of privacy, wrongful discharge, defamation, and discrimination.
Aside from retaining legal counsel, the best way to avoid being drawn into litigation is to ensure that all of your policies are implemented fairly and consistently—in a way that does not violate any federal, state, or local civil rights or workers’ rights laws.
What Are Some Other Types of Employee Drug Tests That Aren’t Allowed?
When it comes to drug testing for job purposes, each state has its own set of rules. In general, other sorts of drug tests may be illegal in your location.
Testing without the applicant’s or employee’s knowledge or approval is known as “covert” testing. For example, if an employer takes a random hair from an employee’s desk and tests it without their knowledge, it may violate both employment and privacy rules.
Certain forms of drug testing are strictly prohibited in some states, particularly those considered physically invasive to the test participant. Blood testing, in particular, has been restricted in many jurisdictions.
Employee drug testing breaches can thus occur in a variety of ways.
Employers frequently use multiple types of drug testing on their staff. If you are unsure about the regulations in your area, you should speak with an attorney.
An employee may refuse or decline a drug test in certain circumstances. For example, suppose a worker is diagnosed with a medical condition covered by ADA. In that case, they may refuse to take a drug test if their employer requires them to do so in a way that violates the ADA’s reasonable accommodations requirement.
A worker may also deny a drug test if doing so would contravene state law.
Furthermore, a worker has the right to decline a drug test if they feel and can establish that they are being tested due to discrimination.
For example, refusing drug testing for religious reasons may be grounds for filing an employment discrimination complaint against an employer in court if an employee can demonstrate that their employer only requires people who observe a certain religion to submit to a drug test.
The repercussions of denying a drug test will vary depending on a variety of criteria, including state laws, corporate rules, employment contracts, the job field, the specifics of a specific instance, and a few others.
The most common outcome for a worker who refuses to take a drug test is that they will be fired. Alternatively, if they are a prospective job candidate, they are unlikely to receive a job offer.
Employees who are fired for refusing to take a mandated exam at the employer’s request generally lose their employee perks as well. This means they may lose their health insurance coverage if their employment supplies them.
Furthermore, several states have implemented laws that make it illegal for employees to collect unemployment benefits if their employer terminates them for refusing to take a mandated drug test.
Another potentially serious consequence of a worker refusing to undergo a drug test for their employment is that they may be charged with a felony if they test positive for a drug that is unlawful under state or federal law.
What If I Have Been Subject to an Illegal Selective Drug Test?
Employers who breach employee drug testing rules may face legal consequences. These are some examples:
- Penalties for violations of state or federal laws (sometimes involve a monetary fine)
- Internal repercussions for policy violations
- Penalties imposed by a government regulatory agency, such as having to implement new company policies
Furthermore, an employee or job applicant who has been wrongfully obliged to submit to drug testing may pursue a private civil case. They may be able to collect for physical injuries or economic losses in court (such as a lost employment opportunity).
In other situations, however, the aggrieved party must file a claim with a government administrative agency such as the Equal Employment Opportunity Commission (EEOC). The employee may file a lawsuit in court if the EEOC investigation does not resolve the matter.
Above all, when it comes to drug testing, businesses must treat all of their employees fairly.
Here are some instances of potential drug test discrimination:
- After an altercation with a supervisor, you are picked out for drug testing
- Despite apparently “random” testing, employees of color appear to be picked disproportionately
- You have a disability that necessitates the usage of a legal prescription substance, which causes you to fail the drug test – and you are dismissed nevertheless
It’s critical to recognize that, despite rising public acceptability, medical marijuana remains illegal under federal law. Employers can fire an employee for using medical marijuana.
Do I Need a Lawyer for Selective Drug Testing Issues?
Drug testing is becoming increasingly prevalent for both job hopefuls and current employees. If you believe you have been wrongfully obliged to submit to drug testing, you should seek counsel from a discrimination lawyer in your area.
Your attorney can advise you on how to recover your losses and, if required, represent you in court.