The majority of employees and applicants will be asked to submit to a drug screening test at least once during their careers. From the perspective of the employer, the consumption of illegal drugs by employees has as a result a level of absenteeism is high and a decrease of the productivity, among other negative factors. In addition, many employers implement procedures for the drug screening before the hiring (and sometimes after the contract) to protect themselves from liability for the actions of their workers.
And although many workers believe that the drug tests violated their right to privacy, the employers often count on the protection of the law, as long as they comply with state and federal standards and apply the policy equally. This article is about the legality of the tests to detect the illegal use of drugs, both before and after the hiring.
Drug tests Before Hiring
With a few exceptions, private employers can ask new employees to undergo a drug screening test as a condition of employment. Applicants have the right to refuse the test, but such refusal normally involves the rejection of the offer of employment. Unlike the drug tests during employment (more on the topic below), when these tests are performed prior to hiring, it is not necessary to justify it by considerations of safety or other concerns related to employment beyond the desire to achieve a work environment free of drugs.
It may be that the members of the trade unions are not asked to submit to a drug screening test prior to hiring (or after), unless such testing programs are negotiated and specifically address in union contracts.
Although the U.s. Constitution does not protect private sector employees from what could be considered an invasion of privacy, some states have laws that limit the rights of employers to subject employees (or applicant) to take drug tests. If you would like more information, please consult with an attorney who specializes in employment law in your state.
Drug tests During Employment
Many states have laws that limit the conditions under which an employer may ask the employee to submit to a drug screening test. Normally, employers must justify the testing of employees with commercial needs or safety, or in response to suspicion of drug use. In general, although they differ according to the state, it is permitted to subject employees to testing to detect the illegal use of drugs under the following circumstances:
- The work of the employer represents a significant hazard to the safety of themselves or others.
- The employee is enrolled in a drug rehabilitation program or has just received the high of such a program.
- The employee was involved in an incident in work in which it is suspected the use of drugs.
- The management has a reasonable suspicion that a particular employee has been using illegal drugs, according to their behavior or physical evidence.
State and federal rules require that employees in certain professions submit to drug-testing, including airline pilots and those who operate heavy machinery. If you are not sure about the requirements for tests for the detection of drugs of your profession, contact the professional organization or with a lawyer who specializes in employment law.
A passage of the Law for a Work Environment that is Drug-Free (Drug-Free Workplace Act of 1988 prompted mandatory guidelines for the screening of drugs for many federal employees (entities executives, the uniformed services and most federal contractors). The federal agencies who perform drug tests must follow the procedures established by the Administration of Mental Health Services and Substance Abuse (Substance Abuse and Mental Health Services Administration, SAMHSA).
These guidelines require testing to detect the use of amphetamines, cannabinoids (marijuana), cocaine, opiates (heroin, morphine) and phencyclidine (phencyclidine, PCP), which requires the evaluation of a medical reviewer.
Invasion of Privacy
The challenges of the policies for the screening of drugs under the premise that they violate the privacy of the employees have not been successful. But while the tests themselves normally do not violate the rights of an individual, sometimes the way the test is performed (or the use of the results) may constitute a violation.
For example, the Supreme Court of the united States argued that the positive results of a drug screening test may not be used in criminal proceedings later without the consent of the employee. In addition, a drug test may be challenged for constitutional reasons if the results are disseminated indiscriminately, if the test is performed in a manner which offends the right to privacy of the person, or if the test is performed in a manner excessive or inadequate.
At least 16 states have enacted laws that allow the use of medical marijuana by patients whose doctors have recommended. But employees in these states are not required to provide a reasonable fit to the people who consume medical marijuana. In other words, employers have the freedom to ignore a certificate legitimate for the use of medical marijuana issued by the state.
One of the legal grounds behind this situation is that employers may be held liable for any work-related injury caused by an employee whose screening test for marijuana was positive, whether or not for medicinal use. Another reason is that certain employers (such as the companies of commercial transportation must comply with the federal regulations that require the testing of drugs. The federal government does not recognize the legitimacy of medical marijuana.
As an employee you can be fired for consuming marijuana, even if it is not under the influence of drugs during working hours.
State laws On Drug Tests
Most states have laws that address the implementation of drug tests in the workplace, either by limiting the circumstances under which they can be tested, or by providing incentives to employers that implement those tests. The following is a short sample of state policies regarding the testing of drugs:
- California: employers that obtain grants or contracts state must certify that it will provide a work environment free of drugs (similar to the federal requirement); contractors must provide a written policy to its employees.
- Florida: state law requires that those contractors who have implemented a policy to a work environment free of drugs, receive priority for state contracts; employers that have a policy for a work environment that is free of drugs will receive a discount in the premiums for workers ‘ compensation.
- Illinois:Illinois does Not have legislation in respect of drug tests.
- New York: No legislation in respect of the testing of drugs; the state courts have supported the implementation of random testing for drugs and alcohol in drivers of urban buses, police officers, and prison officers.
- Texas: employers with more than 15 employees (and coverage for workers ‘ compensation) must adopt the policy of reducing drugs in the workplace of your preference.
Consult a Lawyer Specialized in Labour Law
For more details or if you have additional questions in their best interest may be to contact a lawyer who specializes in employment law in your state.