In most states, an employer has the right to subject job applicants to testing for drug or alcohol abuse. Modern technology has allowed for many different types of employee drug testing, such as those involving hair, urine, blood, or breath samples.  Usually, the testing usually does not occur until the applicant has formally been hired. 

“Selective Drug Testing” is where an employer singles out a particular applicant, employee, or group of persons for drug testing based on their characteristics (such as race, gender, educational background, etc.). In many cases only a certain person or group might be required to take a drug test, while others are not. This is in contrast with “random drug testing”, where employees have an equal chance of being selected for drug testing. 

Selective drug testing can be considered a violation of employment laws such as employment discrimination statutes. Discrimination may occur true if the selection for drug testing is based on the employee’s membership in a “protected class”, such as race, national origin, religion, gender, or political affiliation.  

What Are Some Other Types of Employee Drug Tests That Aren’t Allowed?

Each state will have different laws when it comes to drug testing for employment purposes. Generally speaking, a few other types of drug tests may be prohibited in your area, such as:

  • “Covert” Testing:  This is where the applicant or employee is being drug tested without their knowledge or consent. For example, if an employer picks up a random hair from an employee’s workspace, and runs a test on it without their knowing it, it could be a violation of both employment and privacy laws.
  • Based on Type:  Some states place strict limitations on certain types of drug tests, especially those that are considered physically invasive to the test subject.  In particular, blood testing has been limited in many jurisdictions

Thus, employee drug testing violations can occur in a number of ways.  It is common for an employer to use more than one type of drug testing for employees. Thus, you may wish to consult with an attorney if you are unsure of the regulations in your region.

What if I Have Been Subject to an Illegal Selective Drug Test?

An employer can face legal consequences if they violate employee drug test laws. These can include:

  • Statutory penalties for violating state or federal laws (sometimes involves a monetary fine)
  • Internal punishments for violating company policies
  • Penalties prescribed by a government regulatory agency, such as being required to apply new company policies

In addition, an employee or job applicant who has been wrongly required to submit to drug testing can choose to file a private civil lawsuit.  In court, they may be able to recover for physical injuries or economic losses (such as a lost employment opportunity). 

However, in some cases, the injured party is required to file with a government administrative agency like the Equal Employment Opportunity Commission (EEOC). If an investigation by the EEOC does not remedy the situation, the employee can then file suit in court.

Do I Need a Lawyer for Selective Drug Testing Issues?

Drug testing is becoming increasingly common for both job applicants and employees who are already working. If you feel that you have been wrongly required to submit to drug testing, you may wish to contact an employment lawyer in your area for advice. Your attorney can advise you on how to recover your losses, and can represent you in court if this becomes necessary.