Has your Illinois 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, this area is
regulated by state and local laws.
Although many states have statutes that lay out the
circumstances when an employer may and may not require drug testing, Illinois
isn’t one of them. In Illinois, the law doesn’t encourage or prohibit testing.
However, the state’s discrimination law explicitly states that it is not
illegal for employers to require drug tests of employees who have been or are
in a drug rehabilitation program.
Even though Illinois law doesn’t expressly prohibit drug
testing, an employer may run into legal trouble based on the way it conducts
the test or who it decides to test. Here are some examples:
- Disability discrimination. 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 (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 that the employee tested positive, if
the employer has reason to know that the test is inaccurate.