Know your rights as an applicant if a potential employer requires a drug test.
By Lisa Guerin, J.D.
Many employers require job applicants to take a drug test—particularly those applicants who reach the final stages of the selection process. Why is employment drug testing so common? Do applicants have to agree to take the test? And do applicants have any legal rights in the process? This article explains the rules on applicant drug testing.
Why Employers Drug Test
Most private employers are not required to test for alcohol or drug use. The big exception to this rule is for transportation and other safety-sensitive industries that are regulated by certain federal agencies such as the Federal Highway Administration, the Federal Aviation Administration, and the U.S. Coast Guard. For example, those in the trucking industry, aviation, or mass transit, as well as those who contract with the Department of Defense or NASA, may be required to test at least some employees for alcohol and drug use.
So if it’s not usually required, why do employers drug test? Here are a few reasons:
- To qualify for workers’ compensation discounts. Many states offer employers a discount on their workers’ compensation insurance premiums if they take certain steps to maintain a drug-free workplace, which may include testing job applicants.
- To avoid legal liability. If an intoxicated employee harms someone on the job, the employer could be legally liable for those injuries. Workplace drug and alcohol use may also violate OSHA and state occupational safety laws.
- To maintain productivity and save money. According to the federal government, drug and alcohol use takes a toll on the American workplace. Problems relating to drug and alcohol abuse cost $80 billion in lost productivity in a single year. Employees who use drugs are three times more likely to be late to work, more than three-and-a-half times more likely to be involved in a workplace accident, and five times more likely to file a workers’ compensation claim.
Legal Limits on Drug Testing
Courts and legislators have recognized that drug testing implicates privacy rights. These tests don’t just reveal current drug use—that is, intoxication when the test is taken. They also show past drug use, including use of legal drugs and use of drugs on the employee’s own time. And, the test procedures require the test taker to surrender bodily fluids, sometimes under close supervision.
Because drug testing is intrusive, state and federal laws put some limits on when, how, and whether it can be done. Generally, current employees have greater rights in this area than applicants, because employees already hold a job that they stand to lose if the test comes back positive; applicants stand to lose only an opportunity to get a job.
Prospective employers can’t force you to take a drug test. However, they can generally require you to take one as a condition of employment, as long as they follow the rules. If you don’t want to take the test, you can take yourself out of the running for the job.
- Disability discrimination claims. An applicant who is taking medication for a disability is protected from discrimination by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant’s medication was legally prescribed for a disability, the company could be liable. For more information on the ADA and what companies can and cannot do when hiring employees, see Nolo’s article Avoid Disability Discrimination When Hiring New Employees.
- Other discrimination claims. If a company singles out certain groups of applicants—for example, by race or disability—for drug testing, it could face a discrimination claim. If testing is allowed, it may be fine for the employer to single out certain job classifications for testing (for example, those that are safety-sensitive), but the employer should test all applicants for those positions.
- Violation of state-required procedures. Although virtually all states allow applicant drug testing, many states impose procedural and other requirements. For example, some states allow a drug test only after the applicant has received an offer of employment conditioned on passing the test. A number of states require employers that test to provide written notice or indicate in their job postings that testing is required. In a unique twist, Utah allows applicant testing only if company management also submits to periodic testing. To find out the rules in your state, select it from the list at our Testing at Work page.
- Invasion of privacy. Even if drug testing is allowed, applicant privacy may be violated in the way the test is conducted. For example, requiring an applicant to take a urine test or disrobe in someone else’s presence may well be a violation of privacy.
What About Medical Marijuana?
More than twenty states allow residents to use marijuana for medical purposes. These “medical marijuana” or “compassionate use” laws typically require the user to have a written doctor’s authorization to use marijuana, often for particular diseases or disabilities. If a patient meets the criteria, he or she cannot be prosecuted under state law for crimes relating to the use, possession, or cultivation of a certain amount of marijuana. Federal drug laws still apply, however.
If you live in one of these states and have a valid prescription for marijuana, you may be wondering whether an employer can refuse to hire you based on a positive drug test for this legally prescribed drug. So far, in most states, the answer seems to be yes. The California Supreme Court has ruled that the state’s medical marijuana law applies only to criminal prosecution, not to the workplace. Likewise, the Colorado Supreme Court has held that an employer may fire an employee for off-duty use of medical marijuana, even though the use was lawful under Colorado state law.
A handful of states, however, have passed specific laws prohibiting an employer from discriminating against an employee or applicant for lawful use of medical marijuana or requiring an employer to reasonably accommodate such employees at the workplace. This area of law is relatively new; contact an employment lawyer to find out the rules in your state.