If your employer or prospective employer in Georgia 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.
Georgia, like a number of other states, has a drug-free workplace program regulating drug testing. Employers who establish such a program, as certified by the state's Board of Workers' Compensation, can qualify for a discount on their workers' compensation insurance premiums.
However, employers must follow the state's rules to get their discount. In Georgia, employers must test in certain circumstances, and must observe certain procedures intended to protect employee and applicant rights.
Georgia employers who have a drug-free workplace program are required to drug test applicants who have received conditional offers of employment.
More limited testing is allowed if it is conducted on the basis of reasonable classifications of job positions. For example, an employer that doesn't want to test every job applicant could instead test only those applicants whose jobs would require potentially dangerous activities (such as operating heavy machinery or carrying a weapon).
If an employer requires applicants to take a test, it must include a notice in its job announcements or ads regarding the testing requirement.
Georgia employers with a drug-free workplace program must test employees in the following circumstances:
In addition, employers may conduct random drug testing.
An employer that conducts drug testing must distribute a written policy regarding the testing, and employees must have at least 60 days' notice of the policy. Employees who test positive have five days to contest or explain the result.
The employer's program must include employee assistance (EAP) resources, employee education, and supervisor training. State laws also require employers to use certain procedures for gathering specimens, testing, maintaining confidentiality, and so on.
You can generally be fired for failing a drug test in Georgia, with a few exceptions. First, if you tested positive for a drug for which you have a valid prescription, such as medical marijuana, your employer can't fire you without running afoul of the Americans With Disabilities Act.
Second, it's possible that employer's own policies might prevent it from terminating you. Check your employee handbook to see if there are steps your employer must follow if you fail a drug test, such as referral to an employee assistance program.
Similarly, if you work a union job or have an employment contract, your employer might have to refer you to rehabilitation or take other action before it's allowed to fire you.
Have you been illegally asked or required to take a drug test? Even though Georgia 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.
Below are some examples.
Although an employer has the legal right to test, it must follow the state's requirements. A Georgia 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 or by allowing unauthorized personnel to perform the test) could face legal problems.
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.
An employer who singles out certain groups of employees – for example, by race, age, or gender – for drug testing could face a discrimination claim.
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.
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.
If you need help with one of the claims listed above, it's a good idea to contact an employment attorney in your area. Our lawyer directory can help you find one.