Has your Illinois employer or prospective employer asked you to take a drug test? 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.
Although many states have statutes that lay out the circumstances when an employer may and may not require drug testing, Illinois isn’t one of them. In Illinois, the law doesn’t encourage or prohibit testing. However, the state’s discrimination law explicitly states that it is not illegal for employers to require drug tests of employees who have been or are in a drug rehabilitation program.
Even though Illinois law doesn’t expressly prohibit drug testing, an employer may run into legal trouble based on the way it conducts the test or who it decides to test. Here are some examples:
- 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 (unless the drug is medical marijuana).
- 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 has a legitimate reason 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 has reason to know that the test is inaccurate.