Is Drug Testing Employees Legal?
Certain trace hormones and hormone concentrations are different in men than in women. A sophisticated test can detect these hormones and determine the sex of the person the urine came from.
Your boss surprises you one day with a little plastic cup. They want you to take a drug test, right now, or you’ll be fired. This seems like a violation of your right to privacy. Is drug testing employees even legal? What would happen if you refuse? Well, it depends on the circumstances.
Pre-Employment Drug Tests
An employer can give a prospective employee a drug test, but only under certain circumstances. They can’t simply hand you a cup to pee in, in the middle of an interview. They must give you advance notice of the test, in writing. And they can’t simply make all applicants take a drug test. First, they have to have given you a job offer.
If you don’t want to take the drug test, you are well within your legal rights to refuse. However, if you do, they are also well within their legal rights to refuse to hire you. If you take the test and fail, you can ask for another test. However, your employer may stick you with the bill for the second test—particularly if it’s a lab test, which isn’t cheap. All requests for a re-test must be submitted to your employer in writing within five days of the results of the original test.
Drug Tests During Employment
What about after you’ve been hired? Can your employer still require random drug tests whenever they want? Yes, but there are limitations. Most employers are allowed to test their employees no more than once a year. And they can’t just wake up one day and decide to start administering drug tests willy nilly. Their testing policy must be stated in writing.
There are certain circumstances under which you can be tested immediately, without written notice, even if you’ve already passed a drug test recently. If you get hurt or hurt someone else on the job, or if you cause any kind of work-related accident, they can test you. If you’re involved in an accident while driving or operating heavy machinery, even if you weren’t at fault, you can be drug tested.
Likewise, you can be tested if you’re discovered in possession of drugs, or buying, selling, or using drugs or alcohol while at work. Or, finally, if your employer has reason to believe that you’re under the influence of drugs or alcohol while at work, they can test you without notice. This last one is a bit of a grey area, and some employers may use it as a loophole to administer surprise drug tests even when they shouldn’t.
As with pre-employment drug testing, you are, generally speaking, well within your rights to refuse to take a drug test. And your employers are well within their rights to fire you if you refuse. However, in most cases, they can’t actually fire you for testing positive, if it’s your first time doing so. They can discipline you, and they can offer you the opportunity to get treatment instead, such as attending support group meetings for a pre-specified amount of time. If you refuse treatment, or don’t finish it, though, then they can fire you.
And just as with pre-employment testing, you can ask to be re-tested—typically at your own expense. They may choose to suspend you without pay while waiting for the results of the second test. However, if the results are negative, they then have to offer backpay for your suspension time.
Employee drug testing is a tricky business. It’s important to know your rights: what your employer can and can’t do, and what you can and can’t do in response. By going in with your eyes open, you can be sure your boss can’t take advantage of you, and keep a positive drug test from ruining your employment record.
Contact us if you need to pass an employer drug test