Find Out the Legal Truth: Can Your Employer Drug Test You?

Drug tests are allowed during the hiring process and, within reason, can be used by employers even after an employee is hired. As an employee or prospective employee, it is important to understand the laws surrounding drug testing.

All federal, state, and private employees are subject to drug testing. The Supreme Court has upheld that while testing does infringe on the rights of an employee, it may be necessary to protect the health and safety of others.

Federal laws provide a path for specific agencies, like the Department of Defense and the Department of Transportation, to adopt policies around drug testing for employers falling under their regulation. For example, the Department of Transportation requires industries under their supervision to conduct random testing for “safety-sensitive” jobs, as well as testing after accidents.

However, there is no all-encompassing federal law around drug testing, which leaves much of the regulation up to the states. State laws vary significantly. Some do not have drug testing laws, some limit testing to only a reasonable suspicion or probable cause, and some limit testing regulations to public agencies only.

An employer can administer a drug test as part of the hiring process, but they must test everyone. They are not allowed to single out one applicant from the rest and there must be advance notice given. Drug testing during the hiring process can happen at any point. Many companies make it an initial step, while others make it a final stage as a condition of employment.

Typically, an employer will choose to administer drug tests because they are in some way tied to a federal or state agency that requires a test, because of a drug-free workplace program they participate in, or in the interest of safety. For the most part, these screenings are looking for amphetamines, cocaine, marijuana, opiates, or phencyclidine (PCP). Recent additions to the list include prescription opioids and barbiturates.

Generally, for an employer to administer a drug test after an employee is on the job, there must be a reason. Again, state laws will differ from each other in what a reasonable cause would be, but it must involve facts and not guessing or discrimination. Some examples would include:

• Direct observation of drug use or symptoms like slurred speech, uncoordinated movement, or unusual responses to basic questions
• Abnormal conduct or suffering work productivity
• A report of use from a reliable source, which is then corroborated by a second, independent source
• Evidence that tampering occurred during a recent drug test
• Proof that an employee has used, possessed, or sold drugs while at work

In addition, no suspicion is needed when a job poses a risk to people or property. It is also legal for an employer to require a drug test if the employee is involved in an accident while on the job.

With many states legalizing some form of medical or recreational drug use, it may seem like an employee could be protected from a positive test. In some cases, that may be true. According to Workplace Fairness, there are states that now require employers to accommodate off-duty use by employees. However, no states have laws protecting workers who use marijuana on a job site or work while under the influence. There are also no laws restricting an employer's ability to test for marijuana.

Additionally, an employee should be aware that they may have a positive drug test even if using legal CBD or hemp products. Many CBD products contain lower levels of THC, the metabolite commonly tested in a urine test.

A recent Johns Hopkins study tested individuals by using pure CBD and CBD-dominant cannabis. The urine samples from the participants showed no positive results from pure CBD, but some positive results from CBD-dominant cannabis. The study found that small amounts of CBD or hemp could trigger a positive test.

A study published in the Journal of the American Medical Association also found that as much as 21% of CBD and hemp products sold on the internet contained THC, despite lacking the proper warnings on the label.

Medical marijuana is not the only medication that might cause a positive test result. There are some prescription medications that could trigger a positive result. However, if an employee does have a doctor’s prescription, they may be protected by the Americans With Disabilities Act (ADA). There are a few limitations to that protection:

• If, even after reasonable accommodations were made, the medication continues to interfere with the employee's job function
• If the medical issue no longer exists
• If the employee takes the prescription medication illegally

Some companies employ a medical review officer. If an employer encounters a positive test, they may reach out to the applicant to ask additional questions and give the prospective employee an opportunity for an explanation. From there, the company will determine if the prescription is valid, and the applicant can continue through the process.

If an employee has a positive drug test, what happens next will vary depending on the employer. All federal employees are referred to an EAP program whose rules they must follow, and the drug use must stop, or a loss of employment will occur. Private employers may terminate employment or give an employee a second chance by referring them to a qualified program.

If a prospective employee fails a drug test during an interview process, it typically means that the applicant is no longer eligible for hire. However, there are some industries – like the trucking industry – where there are more lasting consequences. The Federal Motor Carrier Safety Administration has a national database for failed test results, which would ensure a truck driver didn’t fail a test with one company and then go to another company.

If an employee does test positive and feels the test result is incorrect, there may be steps they can take. If they are a member of a union, they can file a grievance with their union. The employee may also want to consult with their state’s Department of Labor or a private attorney. Organizations like the National Workrights Institute or the Privacy Clearinghouse may provide additional information and resources.

Because there are no wide-ranging federal laws, much of an employee's rights end up governed by their state. An employer may use more than a urine test, too. Blood, breath, and hair tests, in addition to many others, might also be used.

An employer is allowed to put protections in place to ensure an accurate test. For example, they could have a monitor listen for the employee to urinate or test the temperature of a urine sample. However, most states consider it illegal for the employer to have someone watch an employee urinate.

Employers must also follow state laws around notice and procedures. For example, for an employer to administer a drug test, many states require:

• A job applicant to be informed that a drug test is part of the hiring process in the application or online posting, or as a contingency of hiring
• All applicants for the same job will all be tested in the same way
• Tests will be administered by a state-certified laboratory

Employees can refuse to take a drug test. However, there are no protections in place for an employee who does. They could face not only job loss but the loss of unemployment benefits. An employee in that situation could take action to show that the employer did not have a reasonable suspicion to prompt the drug test, but it is a difficult argument to prove.

In the end, according to American Addictions Center, the only way to be certain that a drug is not in your system is to abstain.

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