If your Hawaii 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.
Hawaii place restrictions on employers who want to require
drug tests. Although many states give employers more leeway in testing
applicants than testing employees, Hawaii does not follow that pattern. In
Hawaii, the rules for drug testing are the same for employees and prospective
Hawaii Drug Testing Rules
An employer in Hawaii who wants to drug test employees or
applicants must provide advance notice of the testing. The notice must list the
substances that will be tested for and must list the prescription and/or
nonprescription medications that could cause a positive test result. The
employer may not test for any substance that doesn’t appear on the list.
If the employer uses an on-site screening test, it must
follow the instructions on the package. If an employee or applicant tests
positive in an on-site test, the employer must direct the employee or applicant
to go to a licensed laboratory, within four hours, for a follow-up test. If the
employee or applicant doesn’t go to the lab, the employer can fire, refuse to
hire, or take other adverse action against the employee, but only if the
employer provided written notice that:
- The employer followed the required procedures
for the on-site test.
- The employee or applicant could refuse to take
- If the employee or applicant refused or failed
to take the test, the employer could take adverse action.
Employers must pay all costs of drug testing, including the cost of confirming laboratory tests. Employers are also required to maintain the confidentiality of drug test
Legal Claims Arising From Drug Testing
Even though Hawaii 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
- Violation of state laws and procedures. Although
an employer has the legal right to test, it must follow the state’s
requirements. A Hawaii employer that doesn’t provide the required notice of its
testing policy or observe state procedural rights (for example, by failing to
conduct a confirmation test after an initial positive result in an on-site screening)
could face legal problems.
- 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, depending on the
- 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 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.