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 employees.
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 the test.
- 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 results.
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 examples:
- 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 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 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.