Has your Massachusetts 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.
Drug Testing in Massachusetts
Although many states have passed laws regulating or restricting an employer’s right to require drug testing, Massachusetts has not. Massachusetts legislation does not address drug testing in private employment.
However, the Massachusetts Supreme Court has issued a ruling on random drug testing in private employment. In Webster v. Motorola, the Court found that the validity of an employer’s policy of random drug testing had to be weighed on a case-by-case basis, taking into account the employee’s job responsibilities and the employer’s interests. The Court found that a random drug test policy was valid as applied to an account executive who drove up to 25,000 miles per year for the employer. However, it was not valid as applied to a technical editor whose job did not involve national security or pose an immediate risk to health and safety. The editor’s right to privacy outweighed the employer’s interest in drug testing.
Legal Claims for Drug Testing
Because Massachusetts law puts very few limits on workplace drug testing, employees who believe their test was illegal will have to rely on other legal theories. For example, an employer may run into legal trouble based on who is tested or how the test is conducted. Here are some examples:
- Disability discrimination. The Americans with Disabilities Act (ACA) protects an applicant or employee who is taking medication for a disability. Some prescribed medications can result in a positive result on a drug test, 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 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.