Has your employer or prospective
employer in North Dakota 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
North Dakota Drug Testing Laws
Although many states have passed laws
regulating or restricting an employer’s right to require drug testing, North
Dakota is not one of them. North Dakota has no comprehensive law addressing
drug testing in private employment. Instead, North Dakota law provides only
- An employer who requires drug testing
must pay the cost of the test.
- In workers’ compensation cases, an
employer may require an employee to take a drug test following an accident or
injury, if the employer has a mandatory policy of testing under these
circumstances or the employer or a physician has reasonable grounds to suspect
that the incident was caused by impairment due to alcohol or drugs. An employee
who tests positive or refuses to take a test in these circumstances forfeits
the right to benefits.
Because North Dakota doesn’t
otherwise place limits on an employer’s right to drug test, drug testing is not
prohibited or restricted, unless it violates other legal provisions (such as a
law prohibiting discrimination; see below).
Legal Claims for Drug Testing
Because North Dakota law doesn’t put
any limits on 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:
discrimination. The Americans with Disabilities Act (ACA) protects an applicant
or employee who is taking medication for a disability. Some prescribed
medications can result in a positive result on a drug test, 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).
discrimination claims. An employer who singles out certain groups of employees
– for example, by race, age, or gender– for drug testing could face a
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.
An employee might have a valid claim for defamation if the employer publicizes
a false positive result, if the employer acts in bad faith and knew (or should
have known) that the result was incorrect.