If your employer or prospective employer in Wisconsin 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, state and local laws determine whether an employer may test employees and applicants for drugs.
No Drug Testing Statute in Wisconsin
Although many states have passed laws regulating or restricting an employer’s right to require drug testing, Wisconsin is not one of them. Although Wisconsin requires state contractors on certain public works projects to drug test, no Wisconsin statute addresses drug testing in private employment. Workplace drug testing is neither required nore prohibited.
Legal Claims for Drug Testing
Because Wisconsin doesn’t restrict or prohibit 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 maliciously.