Pre-Employment Drug Testing Laws

A pre-employment drug test is a way to screen job applicants to ensure they have not used illegal drugs in the recent past. Many employers want to use pre-employment tests to get the best candidate pool for the job. However, state and local laws may prohibit certain private-sector employers from requiring a pre-employment drug test before the applicant has been offered the job.

Drug laws differ in every state; some cities even have different drug testing laws. A drug arrest can put a permanent mark on your criminal record. Talk to a drug crime defense lawyer for legal advice if you want to know more about your rights after an arrest.

Drug Testing for Jobs

Employers have reasons for wanting to ensure their employees are not under the influence of drugs or alcohol while on the job. Some employers also continue workplace drug testing for the presence of drugs or alcohol that cause impairment. Before investing in a new hire, prospective employers may also want to make sure applicants are not regular users of controlled substances.

Pre-employment drug testing allows employers to learn about a prospective employee’s use of certain illegal drugs. Drug testing should comply with state and federal law, including informing employees about random drug test procedures and written policies. Employers will generally make a conditional job offer before requiring pre-employment drug testing and may rescind the offer for a positive drug test result.

Types of Drug Testing

There are many ways to test someone for the use of certain controlled substances, including blood, saliva, hair, and urine tests. These tests can check for the recent presence of certain chemicals in the person’s body, including:

• Amphetamine
• Cocaine
• Cannabis/THC
• Opiates
• Phencyclidine (PCP)

Unfortunately for workers, drug tests may also check for the presence of certain prescription medications, including medical marijuana and prescription opioids. If the worker is prescribed drugs for a disability, the Americans with Disabilities Act (ADA) may protect the employer from termination because of a positive test result for prescription drug use.

Federal Jobs Requiring Pre-Employment Drug Tests

Some jobs require pre-employment testing under federal law. This includes certain Department of Transportation workers, law enforcement, national security, military, jobs involving access to classified material, and other federal employees. Under the Drug-Free Workplace Act of 1988, certain employers are required to have drug-free workplace policies.

State Laws Prohibiting Pre-Employment Drug Testing

In some states, employers can require a drug test before making an offer for employment and deny an applicant who tests positive. However, other states restrict employers from requiring a drug test until after making a conditional job offer. Some states also require employers to provide prospective workers with a copy of their company’s drug-testing program.

Employers in some industries may require pre-employment drug testing, including public transit drivers, school bus drivers, healthcare, education, security, law enforcement, construction, manufacturing, and public utilities.

Many states are introducing new drug testing laws after legalizing medical marijuana or recreational marijuana. In New York, most employers cannot prohibit workers from using cannabis while off-duty.

Can a Drug Conviction Prevent Me from Getting a Job?

Currently, no federal law prohibits employers from asking about prior drug convictions. However, many states and cities have “ban the box” laws that prevent employers from asking about criminal records as part of job screening.

The Federal Fair Chance Act also prohibits federal agencies and contractors from asking about criminal records before making a conditional offer of employment. However, there are exceptions for some jobs, including safety-sensitive jobs that involve access to classified information, national security, or law enforcement.

Most states have laws that ban asking about convictions on a job application for public employers. A growing number of states and cities also require employers to remove criminal conviction questions from job applications, including California, Minnesota, and Illinois.

However, these policies only apply to job applications. After an employer makes a conditional job offer, they may review the applicant’s criminal history. If you are worried about a criminal background check showing your drug conviction, talk to a criminal defense attorney about options for expunging your record or sealing adult and juvenile possession offenses.

Can I Be Fired for a Drug Crime Conviction?

Most jobs are considered at-will, and an employer can terminate an employee for any reason or no reason at all as long as it is not illegal. Employers can’t fire workers based on racial discrimination or other protected statuses. However, employees are not protected from termination for a criminal conviction or if they miss work because they are sentenced to jail time.

In most situations, if an employer finds out about a criminal arrest or conviction, they can fire the employee. Some jobs may even require the employee to notify the employer about certain criminal convictions, like driving under the influence of drugs or other criminal charges. However, you do have a right to request a copy of any background report to make sure that it accurately reflects your record.

If you don’t want to be fired for a drug crime arrest, talk to a criminal defense attorney. A drug crime defense lawyer can fight the charges or potentially have the charges dismissed by going through a drug court rehabilitation program or substance abuse diversion program.

How a Lawyer Can Help

Private employers in some states cannot require a pre-employment drug screening, but that only sometimes means employers follow the law. If you were fired from your job because of a drug test, you might have the chance to challenge the test, the testing process, or your termination. Contact an employment lawyer in your area who understands the local drug testing laws and can explain your legal options.

A criminal conviction can result in getting fired from your job. The best way to ensure this doesn’t happen is to prevent a criminal conviction by finding an experienced drug crime defense attorney. Drug crime laws are different in every state, and you should talk to a local criminal defense attorney who understands the drug court process in your case. If you were arrested for a drug crime, contact a drug defense attorney to fight the charges.