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MGT3320 Employment Law and Labor Relations (Kapelner)

Employee Drug Testing

Except for certain employers in industries that are heavily regulated by the federal government (such as transportation, nuclear energy, and military contracting), federal law doesn't have much to say about drug testing. Many states -- and even some local governments -- do regulate drug testing, however. Often, the rules depend on whether the employer wants to test an applicant or an employee.

Testing Applicants

Generally speaking, state laws typically allow employers to test applicants for drugs. However, the employer must follow the state's rules about providing notice and following procedures intended to prevent discrimination and inaccurate samples. For example, a number of states allow applicant testing only if:

  • The applicant knows that such testing will be part of the screening process for new employees (for example, because the job application said so or because the employer's online job posting stated that a drug test would be required).
  • The employer has already offered the applicant the job, contingent on passing a drug test.
  • All applicants for the same job are tested similarly.
  • The tests are administered by a state-certified laboratory.

Today, most companies that intend to conduct drug testing on job candidates include in their job applications an agreement to submit to such testing. If, in the process of applying for a job, you are asked to agree to drug testing, you have little choice but to agree to the test or drop out as an applicant.

Testing Current Employees

There are some legal constraints on testing employees for drug usage in most private employment jobs. In some states, companies cannot conduct blanket drug tests of all employees or random drug tests; the testing must be focused on an individual, either because the employer has a good reason to believe that person is using drugs or because the person's job carries a high risk of injury or damage if performed by someone who is under the influence.

Courts have generally ruled that companies may test employees after an accident that could have been caused by drug use or an incident in which the employee appeared to be impaired. For example, a bulldozer operator who swerved the machine illogically through a field crowded with workers could be the legal target of drug testing. And a legal secretary found slumped at her desk, unable to respond cogently to questions asked of her, was also considered fair game for a drug test.

Challenging Drug Tests

As an employee, you can always refuse to take a workplace drug test. But, if you are fired because of your refusal, you may have little recourse. (In fact, in some states, you might be denied unemployment benefits if you are fired for refusing to take a drug test.) Your employer needs only to show that there was good reason to believe that you were a safety hazard on the job or that you seemed unable to perform the work required. You would be placed in the difficult position of proving that your employer knew no such thing. You may, however, be able to win your job back if you can show that you were treated differently from other employees in the same position.

If you have been given a drug test and unfairly suspended or demoted because of it, your best bet may be to argue that the testers did not meet with the strict requirements for form and procedure set out in your state law. And note that employers are free to add safeguards to protect against specimen tampering—requiring those taking the test to remove their own clothing and don hospital gowns, or providing a test monitor who checks the temperature of the urine and adds dye to toilet water, as examples. However, a modicum of discretion is required; while most courts have found it reasonable to have a monitor listen as a urine test is administered, a number have found it an unreasonable invasion of privacy for the monitor to watch.

When Is a Suspicion Reasonable?

Many states allow an employer to test for drugs based on a reasonable suspicion that an employee is under the influence. What suspicion is reasonable and what is not is in the eye of the beholder, which makes it a slippery standard indeed.

But some statutes and courts have attempted to set some guidelines that may be helpful if you are targeted for a test and you believe your employer’s suspicions are less than reasonable. A reasonable suspicion of drug use must generally be based on actual facts and logical inferences, such as:

  • direct observation of drug use or its physical symptoms, including slurred speech, agitated or lethargic demeanor, uncoordinated movement, and inappropriate responses to questions
  • abnormal conduct or erratic behavior while at work, or significant deterioration in work performance
  • a report of drug use provided by a reliable and credible source that has been independently corroborated
  • evidence that the employee has tampered with current drug test results
  • information that the employee has caused or contributed to an accident at work, or
  • evidence that the employee has used, possessed, sold, solicited, or transferred drugs while working or at work.

In addition, many laws require employers to maintain workplace counseling and outreach programs before they can test employees. While most employers these days are too savvy to slip up on procedural details, many of the laws are so picky and detailed that it may be worth your while to make sure your test made the grade.

State and Local Drug Testing Laws

A number of states and municipalities have laws that regulate work-related testing for substance abuse. Those that do also specify the scientific procedures to which testing labs must adhere. And many of these laws provide ways of dealing with overbroad or abusive workplace drug testing that are simpler, quicker, and less expensive than filing a lawsuit. Some states also require companies to distribute written policies on drug testing and rehabilitation.

Ironically, workers in states that have laws regulating the timing and procedures of drug and alcohol testing may actually have more protections than those living in states with no testing laws. Employees living in such lawless states, for example, may generally be tested without advance notice.

(https://www.nolo.com/legal-encyclopedia/free-books/employee-rights-book/chapter5-3.html)

Polygraph Testing in Employment

What is the Employee Polygraph Protection Act (EPPA)? 

The EPPA prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act. Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint, or for participating in a proceeding under the Act. Subject to restrictions, the Act permits polygraph (a type of lie detector) tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors and dispensers.

Subject to restrictions, the Act also permits polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer. Where polygraph examinations are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing and post-testing phases. An examiner must be licensed and bonded or have professional liability coverage. The Act strictly limits the disclosure of information obtained during a polygraph test.