Many employers require job applicants to take a drug test—particularly those applicants who reach the final stages of the selection process.
Why is employment drug testing so common? Do applicants have to agree to take the test? And do applicants have any legal rights in the process?
This article explains the rules on job applicant drug testing.
Most private employers are not required to test for alcohol or drug use. The big exception to this rule is for transportation and other safety-sensitive industries that are regulated by certain federal agencies such as the Federal Highway Administration, the Federal Aviation Administration, and the U.S. Coast Guard.
For example, those in the trucking industry, aviation, or mass transit, as well as those who contract with the Department of Defense or NASA, may be required to test at least some employees for alcohol and drug use.
So if it's not usually required, why do employers drug test? Here are a few reasons:
Courts and legislators have recognized that drug testing implicates privacy rights. These tests don't just reveal current drug use—that is, intoxication when the test is taken. They also show past drug use, including use of legal drugs and use of drugs on the employee's own time. And, the test procedures require the test taker to surrender bodily fluids, sometimes under close supervision.
Because drug testing is intrusive, state and federal laws put some limits on when, how, and whether it can be done. Generally, current employees have greater rights in this area than applicants, because employees already hold a job that they stand to lose if the test comes back positive; applicants stand to lose only an opportunity to get a job.
Prospective employers can't force you to take a drug test. However, they can generally require you to take one as a condition of employment, as long as they follow the rules. If you don't want to take the test, you can take yourself out of the running for the job.
Here are some of the legal limits that might apply to applicant drug testing:
More than two-thirds of the states allow residents to use marijuana for medical purposes. These "medical marijuana" or "compassionate use" laws typically require the user to have a written doctor's authorization to use marijuana, often for particular diseases or disabilities.
If a patient meets the criteria, he or she cannot be prosecuted under state law for crimes relating to the use, possession, or cultivation of a certain amount of marijuana. Federal drug laws still apply, however.
If you live in one of these states and have a valid prescription for marijuana, you may be wondering whether an employer can refuse to hire you based on a positive drug test for this legally prescribed drug. In some states, the answer is yes.
A number of states, however, have passed specific laws prohibiting an employer from discriminating against an employee or applicant for lawful use of medical marijuana or requiring an employer to reasonably accommodate such employees at the workplace. This area of law is relatively new; contact an employment lawyer to find out the rules in your state.