If your employer or prospective employer in Ohio 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 a number of other states, Ohio has a drug-free workplace program regulating drug testing. Employers who establish such a program can qualify for a discount on their workers’ compensation insurance premiums. However, employers must follow the state’s rules to get their discount.
Under Ohio law, an employer who wants the workers’ compensation discount must drug test employees and applicants, in some circumstances. Employers may qualify for a deeper discount if they also perform random testing and commit to helping employees with rehabilitation.
Rules for Job Applicants in Ohio
Ohio employers are allowed to drug test applicants and new hires.
Rules for Employees in Ohio
Ohio employers are authorized to drug test employees in a variety of circumstances, including:
- following a workplace accident
- based on reasonable suspicion, and
- after an employee returns to work after a positive test.
Employers who drug test must have employee assistance program (EAP) resources, employee education, and supervisor training.
Employers who want to qualify for a deeper discount must adopt a policy allowing for random testing of at least 15% of their workforce each year. Employers seeking the deeper discount must also commit not to terminate an employee for a first positive test, who comes forward voluntarily to acknowledge a substance abuse problem, or who is referred by a supervisor for an assessment.
Legal Claims Arising From Drug Testing
Even though Ohio law allows employers 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.
- 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, depending on the circumstances.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes that the employee tested positive, if the employer knew or clearly should have known that the test result was in error, and the employer did not act in good faith.