Has your Kentucky 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, state and local laws determine whether an employer may test employees and applicants for drugs.
Kentucky Drug Testing Laws
Kentucky allows employers to adopt a drug-free workplace program, to qualify for a discount on their workers' compensation premiums. Employees don't have to adopt such a program. If they do, however, it must include both drug and acohol testing.
Kentucky employers who want to establish a drug-free workplace must drug test applicants after making a conditional offer of employment. They must test employees:
- on reasonable suspicion of drug use
- following a workplace accident that requires medical care for at least one person
- as a follow-up to an EAP or a rehabilitation program for drug use, and
- as selected in a statistically valid, unannounced, random selection program.
Kentucky employers must test for alcohol after making a conditional job offer to an applicant. They must test employees for alcohol:
- on reasonable suspicion of alcohol use
- following a workplace accident that requires medical care for at least one person, and
- as a follow-up to an EAP or a rehabilitation perogram for alcohol use.
Legal Claims for Drug Testing
Have you been illegally asked or required to take a drug test? Even though Kentucky law allows employer 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:
- 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 a false positive result, if the employer acts in bad faith and knew (or should have known) that the result was incorrect.