Employment Law -- Employee
Can My Employer Force Me To Take a Drug Test?
You’ve probably had to take a drug test when you applied for a job. Drug testing is a legal part of the application process for many employers. But what about when you’re already an employee? There are certain situations where your employer can make you take another drug test.
This article explains the drug testing laws for employees. State drug testing laws vary. Contact an employment attorney in your area for help. An experienced attorney can explain your local laws. They can also give you legal advice about your unique situation.
You may view employee drug testing as an invasion of privacy. But employers have the right to ensure their employees aren’t under the influence while on the job. That includes legal and illegal drugs. Drug testing policies attempt to balance employer and employee rights.
Private employers can test you for a variety of substances. But most employers aren’t required to test. In fact, many state and local governments have statutes that limit or prohibit workplace testing. But state or federal laws may require testing for some jobs.
Two federal laws impact your employer’s ability to drug test. They are the Americans with Disabilities Act (ADA) and the Drug-Free Workplace Act. Your employer must accommodate you if you use a legal drug to treat a medical condition under the ADA (note that this does not include medical marijuana, which remains illegal under federal law).
The Drug-Free Workplace Act allows federal contractors to have a drug testing program as part of its drug-free workplace policy.
Employers who test must have a drug-testing policy. These policies protect employees and employers. Drug testing without a written policy exposes employers to legal liability. That applies even when the employer thinks you have a substance abuse problem.
Employers in some states must have an employee assistance program (EAP) if they test. The EAP should offer substance abuse counseling and treatment services.
State laws allow pre-employment drug testing. Employers that drug test applicants must do the following:
- Provide notice to job applicants that they must take a drug test
- Require the test after extending the job offer
- Test all applicants for the job to protect against discrimination
- Ensure testing provides accurate results by using a state-certified lab for the test
States differ on drug testing current employees. Employers are typically allowed to test you in the following circumstances:
- After you come back from rehabilitation following a positive test
- After an accident that alcohol or drug use could have caused
- Reasonable suspicion that you’re impaired
What’s reasonable suspicion is often subjective. Your employer must base its suspicion on facts and logical inferences. Reasonable suspicion includes the following:
- Observing symptoms of drug and alcohol use like slurred speech and erratic behavior
- A corroborated report of drug use from a reliable person
- Information that you caused an accident at work
- Evidence that you tampered with a drug test
- Evidence that you have used or transferred drugs at work
Some states prohibit random drug testing. Employers must focus on the individual in these states. For example, your employer must have a reasonable suspicion to think you’re impaired. Employers in states that allow random testing must follow their state’s laws.
You can refuse to take a drug test. But you may lose your job if you do. In some states, you can lose unemployment benefits if you refuse a drug test.
It can be challenging to get your job back if your boss fires you for refusing a drug test. You must prove your employer didn’t have a reasonable suspicion to test you.
Your employer can take adverse action against you because of a positive drug test. But if you think the action is unfair, you have options. You can argue that your employer didn’t follow state law. You can also argue that the tester didn’t follow the required procedures.
Be aware that employers can take steps to safeguard the testing process. For example, they can have a monitor present during your test. The monitor can only listen and check your sample’s temperature. They can’t watch.
Drug and alcohol testing laws vary by state. It’s essential that you know the laws where you live before you make a mistake that can cost you your job. An experienced employment law attorney can give you legal advice. They can also help you file a complaint or challenge a positive test result.
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