Has your employer or prospective employer in North Dakota 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.
North Dakota Drug Testing Laws
Although many states have passed laws regulating or restricting an employer’s right to require drug testing, North Dakota is not one of them. North Dakota has no comprehensive law addressing drug testing in private employment. Instead, North Dakota law provides only that:
- An employer who requires drug testing must pay the cost of the test.
- In workers’ compensation cases, an employer may require an employee to take a drug test following an accident or injury, if the employer has a mandatory policy of testing under these circumstances or the employer or a physician has reasonable grounds to suspect that the incident was caused by impairment due to alcohol or drugs. An employee who tests positive or refuses to take a test in these circumstances forfeits the right to benefits.
Because North Dakota doesn’t otherwise place limits on an employer’s right to drug test, drug testing is not prohibited or restricted, unless it violates other legal provisions (such as a law prohibiting discrimination; see below).
Legal Claims for Drug Testing
Because North Dakota law doesn’t put any 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 (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.