Will a Lawyer Take My Case If I Failed a Drug Test?

Even if you have failed an employer’s drug test, you may have legal challenges to the test or to any actions the employer took based on the test results.

Drug testing law is complicated and varies from state to state. For general information about laws in your state, see “State Laws on Drug Testing.

What a Lawyer Can Do

An employment lawyer familiar with drug testing laws in your state can assess whether or not your employer acted legally in testing you and in its response to the test results. And, the lawyer will analyze whether or not the employer conducted the drug test properly.

Did the Drug Test Violate the Law?

There are a few federal laws that may apply when an employer conducts a drug test of employees or applicants. And, many states have their own laws that govern how, when, and why an employer may test an applicant or an employee for the presence of drugs in their system.

Drug Test Results Used to Discriminate

The U.S. Genetic Information Nondiscrimination Act (“GINA”) prohibits employers from using genetic information to discriminate against employees in hiring or employment. Because drug tests take samples from a person’s body that may contain genetic information that would reveal disabilities, susceptibility to certain diseases, and other confidential medical information, GINA bars employers from gathering and using genetic information to screen out certain employees or applicants.

Under the U.S. Americans with Disabilities Act (“ADA”), employers are barred from testing an applicant to screen out those with HIV/AIDS or other disabilities or to discriminate against current employees. HIV/AIDS is among the disabilities that may be revealed in a drug test of a blood sample.

Many states also limit employer access to medical information about an applicant or employee. Some cities have enacted ordinances that limit employer testing for HIV/AIDS to only those jobs where infection would be directly relevant (such as health care profession positions).

Privacy Rights

In addition, some state courts have issued decisions that affect applicant and employee rights when employers conduct drug testing. Drug tests do not merely explore a person’s drug intoxication: Tests themselves are invasive (often involving the taking of a urine sample), and the results do not merely show current drug intoxication but can reveal off-duty drug use. Some states view such measures as possible violations of employees’ and applicants’ right to privacy. An employment lawyer in your state should be up to speed on all of these aspects of the law that may be implicated in your drug test.

Applicant vs. Employee Drug Testing

In general, the law places more limits on an employer’s right to drug test an employee than a job applicant. Some states limit employer drug testing of employees to situations indicating “individualized suspicion” of possible drug use, such as where the employee to be tested was involved in an accident or just returned from drug or alcohol rehabilitation leave. Many states allow employers in certain professions and industries (such as health care workers, police officers, or public transit operators) to test employees with fewer restrictions. Ask an employment lawyer familiar with the drug testing laws in your state about when, how, and why employers may drug test people in your capacity (either applicant or employee).

Legal Off-Duty Conduct

As noted above, drug tests are not able to distinguish between intoxication, current drug use, and drug use in the recent past because the tests simply show some marker that the person tested has ingested a drug at some time. Markers for certain drugs stay in the blood stream longer than others. Alcohol leaves the blood stream relatively quickly, while THC (the active compound in marijuana) leaves its mark for many days after the person has used the drug.

Employer drug tests reveal legal pharmaceuticals as well as illegal drugs, so employers may learn about an employee’s medical conditions from drug tests. In addition, now that many states have legalized either recreational or medicinal (or both) use of marijuana, employer drug tests will reveal legal use of marijuana possibly many days prior to the test. So, if you smoked pot on the weekend in Colorado (where it is currently legal for recreational use) and your employer makes you submit to a drug test on Monday, the marker for THC will still be in your blood stream but your buzz will definitely be gone.

As of this writing, most courts have decided that employers can refuse to hire an applicant who tests positive for THC. But because legalization of marijuana is a relatively new development, employees and employers will undoubtedly be filing new lawsuits to ask courts to determine if an employer can fire or otherwise punish an employee (or even an applicant) for using legal marijuana during off-duty hours when that use shows up in a drug test. Ask an employment lawyer about the status of these issues in your state.

Was the Drug Test Properly Administered?

In addition to questions of privacy and discrimination, employer drug testing also raises questions of procedure. Did the employer (or its testing contractor) take the sample properly? Was the sample handled in a way that its ”chain of custody” can be reliably confirmed? Was the laboratory that tested the sample accredited and trustworthy?

Some states allow an employer to conduct a drug test only after making a job offer to the applicant with passing the test as a condition of hire. Utah goes so far as to allow applicant testing only if the employer’s management personnel also undergo periodic testing.

You may be able to challenge some or all steps in the drug testing process. You may also be allowed to have your sample re-tested by a different laboratory. An employment lawyer can help you sort out these questions and determine the best steps to take in your particular case.

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