If an employer or a prospective employer in Maryland 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.
Maryland allows employers to require drug tests, if they
follow the state’s procedures and rules.
Drug Testing for Maryland Applicants
Employers may require applicants to take drug tests. If the
initial result of an applicant’s test is positive for drugs, and the applicant
voluntarily discloses that he or she is taking a legally prescribed medication,
the employer may make a job offer conditional on a laboratory’s confirmation of the test results.
Drug Testing for Maryland Employees
An employer may require employees to take drug tests for
legitimate business purposes only.
An employer who requires drug tests must test samples at a
certified laboratory. At the time of the testing, the employee may request the
name and address of the lab. State law dictates the procedures for testing,
confidentiality, and other procedures.
An employee who tests positive must be given:
- a copy of the test results
- a copy of the employer’s written testing policy
- written notice of any adverse action the
employer plans to take based on the results, and
- a statement of the employee’s right to an
independent confirmation test at the employee’s expense.
Legal Claims Arising From Drug Testing
Even though Maryland law allows employers to drug test in
some circumstances, employees and applicants may have legal claims based on who was tested, how the test was conducted, or how the results were used. Here are
- Violation of state laws and procedures. Although
an employer has the legal right to test, it must follow the state’s
requirements. For example, a Maryland employee could challenge an employer who
didn’t have a legitimate business reason to test or didn’t provide the
documents required following a positive test result.
- 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 an employee's positive test result, 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.