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 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.
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.
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:. In addition, many laws require employers to maintain workplace counseling and outreach programs before they can test employees.
Some employers like to perform random screening for workers who drive, operate heavy equipment or work on dangerous construction sites. But employers should note that laws on random drug testing vary from place to place.
Some locations restrict their use and others prohibit them altogether. In Connecticut, an employer may conduct random drug testing only if:. Employers must write to the Connecticut labor commissioner to explain why they want to perform random drug tests and get approval for the program.
In California, the state constitution gives people the right to privacy, so "suspicionless" drug screens—such as random tests—are only allowed in narrow circumstances. However, pre-employment tests are generally permissible in the Golden State. Employers should also be aware of local laws. For instance, in San Francisco, random testing is illegal unless it is required by federal law. Employers also may want to conduct drug screens after accidents to determine if on-the-job intoxication may have contributed.
Quest Diagnostics recommends that post-accident testing be done within 12 hours of the incident. The federal government has clarified that most workplace drug-testing programs are permissible under the Occupational Safety and Health Act, but employers should be careful not to implement post-accident drug-testing policies that are written in such a way as to deter workers from reporting accidents.
For example, rather than saying "any worker involved in any accident will be screened for drug use," employers may want to only screen workers who could have actually contributed to the incident. What if an employee appears to be under the influence? Simo recommended that all employers develop a program to test employees for reasonable suspicion when they exhibit behaviors that may indicate intoxication.
The observed behaviors and reasons for sending the employee for drug screening should be thoroughly documented. Note that companies can have different drug-testing rules for different positions. For additional information, take a look at the following resources: FAQ: Are applicants or employees who are currently illegally using drugs protected by the ADA? Subscribe to Our Newsletter. Was this page helpful? How can we make this page better for you? Website feedback only.
While stereotypical drug users may be unemployed and homeless, with the inability to exert any self-control, the reality is that some of the most highly educated and respected occupations are at high risk of alcohol and drug use, including physicians, lawyers, and all manner of shift workers. It is becoming increasingly evident that substance users permeate all sectors of society.
And the reasons for their drug use are complex, with drug use often being spurred on by unrealistic expectations by employers for workers to cope with extended stress and lengthy shifts. So there are two opposing agendas at stake here—the health and safety agenda, ensuring that people in positions of responsibility are clean and sober, and the civil liberties agenda, emphasizing individual freedom, the right to privacy and protection from discrimination.
Workplace drug testing encourages greater responsibility among workers who may cause harm to themselves or others by working under the influence. Would you be comfortable if the following professionals were working under the influence of alcohol or other drugs?
Workplace drug testing can help identify employees in need of help with their substance use. Because people with addictions are often highly secretive and deceitful, drug testing circumvents the need for honest self-reporting, which is highly unreliable when people have a lot to lose; in this case, potentially, both their livelihood and their reputation.
When proper informed consent procedures are followed, workplace drug testing acts as a deterrent to people who might otherwise experiment with, or regularly use alcohol or drugs. Workplace drug testing has the potential to greatly enhance health and safety in the workplace. Testing discourages people from abusing substances and thereby suffering any ill health effects and reducing the likelihood of accidents and injuries related to working under the influence.
Workplace drug testing is an invasion of people's basic privacy. Taken out of context, and with all responsibility placed on the employee, drug testing at work also does not take into account the pressures that the work environment may place on employees. These pressures can include:. Drug testing at work could fail to take into account the mental health problems of people with addictions.
Rather than being offered the appropriate treatment, people who test positive on drug tests are at risk of being fired without compensation and may be ineligible for welfare or other social assistance.
This will create or compound a marginalized underclass of disenfranchised citizens who have even less incentive to quit their addiction.
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