Has your Virginia 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, state and local laws determine whether an employer may test employees and applicants for drugs.
Although many states have passed laws regulating or restricting an employer’s right to require drug testing, Virginia has not. Virginia legislation does not address drug testing in private employment. This means that employers are free to require or ask employees and applicants to take a drug test, as long as they don’t run afoul of other legal protections.
Virginia law does require workers’ compensation insurance providers to provide a discount to employers who establish a drug-free workplace program. However, the law allows insurers to determine the criteria for such a program. State law doesn’t require insurers to mandate drug testing.
Because Virginia 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: