If your Tennessee 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 a number of other states, Tennessee 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 Tennessee law, an employer who wants the workers’ compensation discount must drug test employees and applicants, in some circumstances.
Rules for Job Applicants in Tennessee
A Tennessee employer that wants to qualify as a drug-free workplace must test applicants who have received a conditional offer 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).
An employer that requires drug tests must include notice, in its job ads and postings, that it requires drug testing.
Rules for Employees in Tennessee
A Tennessee employer that wants to qualify as a drug-free workplace must test employees:
- who are in safety-sensitive positions
- following a workplace accident that results in injury
- as part of a routine fitness-for-duty medical exam (if required by the employer’s policy)
- as a follow-up to a required rehabilitation program, or
- upon reasonable suspicion that the employee is under the influence. An employer that tests based on reasonable suspicion must document the behavior on which the suspicion is based within 24 hours or before the drug test results are released, whichever is earlier. The employer must give a copy of this documentation to the employee, upon request.
Employees have the right to explain or contest a positive result within five days. An employee may not be fired, disciplined, or discriminated against for voluntarily seeking treatment for substance abuse unless the employee has previously tested positive or has already been in a rehabilitation or treatment program.
Legal Claims Arising From Drug Testing
Even though Tennessee 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. The Americans with Disabilities Act (ADA) protects an applicant or employee who is taking medication for a disability. 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.