If your Arkansas employer or prospective employer has asked you to take a drug test, you’ll want to know your legal rights. Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit drug tests. For the most part, this area is regulated by state and local laws.
Like other states, Arkansas has a drug-free workplace program regulating drug testing. Employers who establish such a program, as certified by the state’s labor department, can qualify for a discount on their workers’ compensation insurance premiums. However, employers must follow the state’s rules to get their discount. In Arkansas, employers must test in certain circumstances, and must observe certain procedures intended to protect employee and applicant rights.
Rules for Job Applicants in Arkansas
Arkansas employers who have a drug-free workplace program are required to drug test applicants who have received conditional offers of employment. More limited testing is allowed if it is conducted on the basis of reasonable classifications of job positions. For example, an employer that doesn’t want to test every job applicant could instead test only those applicants whose jobs would require potentially dangerous activities (such as operating heavy machinery or carrying a weapon).
If an employer requires applicants to take a test, it must include a notice in its job announcements or ads regarding the testing requirement.
Arkansas Rules for Employees
Arkansas employers with a drug-free workplace program must test employees in the following circumstances:
- after an accident that results in injury
- on reasonable suspicion of drug use
- as part of a routinely scheduled fitness-for-duty medical examination, and
- as a follow-up to a required rehabilitation program.
In addition, employers are allowed (but not required) to drug test employees for any other lawful reason.
Notice and Procedural Rights for Arkansas Employees
An employer that conducts drug testing must give all employees a copy of its policy, and employees must have at least 60 days’ notice before the program is implemented. Employees who test positive have five days to contest or explain the result.
State laws also require employers to use certain procedures for gathering specimens, testing, maintaining confidentiality, and so on.
Legal Claims Arising From Drug Testing
Have you been illegally asked or required to take a drug test? Even though Arkansas law allows employer to drug test, employees and applicants may have legal claims based on how the test was conducted, who was tested, or how the results were used. Here are some examples:
- Violation of state laws and procedures. Although an employer has the legal right to test, it must follow the state’s requirements. An Arkansas employer that doesn’t provide the required notice of its testing policy or observe state procedural rights (for example, by allowing an employee to explain a positive test result) could face legal problems.
- Disability discrimination. An applicant or employee who is taking medication for a disability is protected 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.
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender –for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that is allowed or required to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes that the employee tested positive, if the employer has reason to know that the test might not be accurate. For example, if a retest showed that the first test was a false positive or the employee has appealed the first test, the employer may be liable for revealing the results of the positive test beyond those with a need to know.