Though there are clear guidelines regarding drug testing of employees, there is still a lot of ambiguity and questioning regarding the legalities of an employee drug test. In this post we will explore the sensitive issue of drug testing of employees and employee rights.
State and Federal Laws
Federal and state employees are subject to drug testing, but so are private employees. If we consider private employers, they mostly perform a drug testing procedure on their employees for health and safety reasons. Drug usage is known to have damaging health consequences. An employer would want to prevent health repercussions in his employees as well as any illegal activities at the workplace.
It is understandable that the employers will want to promote a safe and productive work environment. However, most states do lay down the clause that drug testing is justified in limited and specific circumstances only. For federal employees who handle classified information, and high priority national and international documents, drug testing is a given part of their job role. To a certain extent drug testing is invasion of privacy of employees, but when you are handling such high profile jobs, security becomes the primary concern.
Drug Test for Incoming Employees
This happens all the time. You apply for a job and your potential employer wants you to undergo a drug test. Employers can test all incoming employees for drugs, even if there is no cause or reason to believe that he or she is into drugs. The operative word here is ‘all’. So don’t sweat the next time your prospective or new employer insists on drug testing. However, do make sure that this test is being administered to all prospective and incoming employees, and you are not being singled out.
Also, ensure that your employers provide in black and white that drug testing is required for the job. Written documentation of all events of drug testing is important.
Drug Tests on Grounds of Reasonable Suspicion
While drug tests are administered to all incoming employees, existing employees can be asked to undergo the test too on the grounds of reasonable suspicion. Reasonable suspicion indicates that the employer has enough evidence, logic and facts to believe that you are taking drugs. Reasonable suspicion entitles the employer to conduct a drug test on the existing employee he suspects.
Symptoms and signs that lead to reasonable suspicion usually are slurred speech, uncoordinated movement, deterioration or unnatural improvement in performance, eye witness accounts of you using drugs and a deliberate attempt made by you to tamper your results.
Sometimes the employer also relies on external and internal reliable sources to monitor and check on employees. If a report comes from a reliable source that an employee is doing drugs, the management can ask them to test.
Random Drug Tests
As mentioned earlier, there are a few high security jobs where regular drug testing of employees is the norm. However random testing can also be done at jobs that pose grave risk of human injury or property damage. There is no need for reasonable suspicion to occur in these cases. However most employers do comply with the requisition that advance notice must be given to employees who will have to undergo the test. Barring few unique cases, the law states that prior notice must be given to employees who are to be tested for drugs.
Repercussions of Positive Drug Test
Once your urine, blood, breath or hair sample tests positive there are a host of repercussions. Your employer can fire you or they might refer you to a EAP - employee assistance program.
Employers often include mandatory rehabilitation as the primary clause of continuing with employment, and you might be tested during the period of rehabilitation as well. This is to ensure that you are complying with the restrictions and recommendations of the program.
Also in states where drug testing is largely permissible, a failed or denied drug test can lead to you losing your unemployment benefits as well. Some states however do allow you access to unemployed benefits after termination, if you remain unemployed for a long period of time.
Employee Rights and Challenging Accuracy of Test
There have been many cases where an individual has tested positive, but is confident of the inaccuracy of the state. If this ever happens to you seek legal help. There are methods to challenge the accuracy of the test. If a test has indeed been carried out badly and has in turn produced wrong results, the employee in question can file can file an assault case against the employer. You can also contact the state department of labor, or simply find out the grievance procedure in your company. You can talk to your employer first in detail before taking any action.
Also remember that random testing only applies is it has been stated in your contract of employment or the company handbook, or it is redundant and cannot be done. Similarly the company cannot single out one or a few employees to undergo the test in random testing.
The company also cannot discriminate between employees once the results are out. For instance, if the company is firing you for drug abuse, but not other employees who have tested positive, you can consult an attorney and file a discrimination case against your employer. At the same time, if you are a member of a union, you can file a grievance regarding your termination too. Before taking any step though, it is important to consult a lawyer and discuss the details and nuances of the case.
While the laws are strict regarding drug abuse and consumption among employees, there are also numerous provisions in state and federal law that allows you to challenge inaccurate results and coercive and unfair employer tactics. Employees have very well defined rights, and must exercise them when they feel unfair treatment is being meted out to them.