Although most private employers are not required to conduct applicant drug testing, some do anyway. If you are one of them – or your company is considering a drug testing program – you need to know the rules. Even if drug testing is allowed (as it is in many states), you can still get into trouble if you violate employee rights by testing for illegal reasons or using the wrong methods.
Whether or not to drug test applicants is typically up to employers. The only private employers who might be required to test applicants are those in transportation and other safety-sensitive industries that are regulated by certain federal agencies, including the Federal Highway Administration and the Federal Aviation Administration. If, for example, your company is in the trucking industry or contracts with the Department of Defense, you may be required to test for alcohol and drug use. (For more information on testing for safety-sensitive positions, go to www.samhsa.gov/workplace, the website of the Substance Abuse and Mental Health Services Administration.)
Even though it isn’t required, many employers choose to drug test. The main reasons include:
Drug tests implicate privacy rights, as court cases have recognized. The testing process typically requires the applicant to urinate or give blood, sometimes under supervision to insure that samples aren’t contaminated or switched secretly. And, drug tests reveal off-duty conduct. These tests are not finely calibrated enough to reveal only intoxication when the test is taken. They also reveal past drug use, including the use of legal drugs (such as prescription medications) and drug use when the employee is not at work.
Because drug testing can potentially intrude on applicant privacy rights, state and federal laws limit when, how, and whether it can be done. Legally, most courts (and state legislatures) grant current employees greater rights than applicants. After all, employees have more to lose: They already have jobs that they might be deprived of if the test comes back positive. Applicants lose only the right to compete for a job.
You can’t force applicants to submit to a drug test. If an applicant refuses to take one, however, you generally don’t have to consider that person for employment. This is true only if you test in a manner allowed by your state’s law, and you test applicants in a fair and consistent manner.
A drug testing program can lead to discrimination allegations if an employer doesn’t test even-handedly. For example, if your company singles out certain groups of applicants for drug testing based on a protected characteristic -- for example, by race or ethnicity -- for drug testing, it might be liable for discrimination. If you decide to drug test only for certain positions (those that require employees to carry a weapon, for instance), testing is allowed, you should test all applicants for those positions.
Disability discrimination claims might also arise from a drug testing program. The Americans with Disabilities Act prohibits employers from discriminating against employees who take medications to treat or manage a disability. A drug test might reveal the use of drugs prescribed for this purpose. If you reject an applicant based on a positive test result, and the applicant was using legally prescribed drugs for a disability, you could be liable for disability discrimination. For this reason, many state laws require employers to use a lab or program that makes a medical officer available to review positive test results with applicants, so an applicant using prescription drugs has an opportunity to explain. (So far, employees who have a legal prescription for medical marijuana have not succeeded in challenging drug test results on that basis, even if the drug is prescribed for a disability.)
The right to drug test applicants doesn’t include the right to violate their privacy unduly. For example, even if your state allows employers to test applicants, you might still face a claim for invasion of privacy if you require applicants to produce a urine sample in front of another person.
Virtually all states allow applicant drug testing in some form. However, many states require employers to follow certain procedural or policy requirements. Employers may have to give written notice, in job postings and applications, that testing is required for the position. Employers may have to use only certified labs or make an appeal process (by which the applicant can ask that the sample be retested) available. And think twice before imposing a drug test requirement in Utah: Applicants can be tested there only if company managers are also tested periodically.
To find out the rules in your state, select it from the list at State Laws on Drug Testing.