Has your employer or prospective employer in Washington 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.
Drug Testing Regulations in Washington
Many states have passed laws regulating or restricting an employer's right to require drug testing. In Washington, an employer can generally require an employee to take a drug or alcohol test in the following situations:
- The employer has specific reasons to believe the employee's job performance is impaired due to the presence of drugs or alcohol in the body.
- The employee is involved in an accident or incident.
- The employer wishes to test employees who are responsible for public safety, administering or dispensing medication, or using a firearm as part of their job duties.
Additional restrictions apply to employers who want their workers to submit to drug tests. Read the regulations for more information.
The rules are different for job applicants. Employers are typically free to require applicants to take drug tests as a condition of employment. The employer doesn't need to have any particular reason to believe the applicant is a drug user, as long as the drug testing policy applies to all incoming employees.
Legal Claims for Drug Testing
In Washington, employees who are drug tested in violation of the regulations can file a lawsuit against their employer. In addition, employers may run into legal trouble under other theories based on who is tested or how the test is conducted. Here are some examples:
- Disability 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.
- 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 a false positive result, if the employer acts maliciously.