Employee Drug Testing: Is it Necessary?

In recent years, an increasing number of states have legalized marijuana, whether it be for medical or even recreational use.

So much so that nowadays only Idaho, Nebraska, and South Dakota completely prohibit any marijuana use.

What’s more, some of the most successful companies out there such as Apple, Google, Microsoft, and Facebook have stopped drug testing their employees.

Employee drug testing, which started gaining popularity in the 80s, has since become a corporate staple.

But with the changing climate concerning marijuana and the recent changes in corporate policies, does it still make sense to drug test employees today?

Naturally, you want your employees to be professional. And having a clear mind is a minimum, especially as some jobs involve being responsible for the safety of other human beings.

On the other hand, employee drug testing can be seen as an invasion of privacy and be a deterrent for some.

This article will outline the essential facts of drug testing to help you make an informed decision for your company. So read on!

1. Is Employee Drug Testing Legal?

Yes, it is. All private, state or federal employees may be required to be tested for drugs.

Generally speaking, all employees who deal with classified information and national security have to go through drug testing. This is also the case for all those who work in law enforcement and health and safety.

According to the Supreme Court, though drug testing may represent a breach of privacy, it’s still a necessity in order to preserve the health and safety of others.

State laws tend to be similar to federal laws on that matter, and drug testing is usually performed on state employees.

When it comes to private employers, they can ask their employees to go through drug screens. However, local laws may differ in the way that they defend the privacy of employees.

Overall, private employees get tested for productivity reasons, health, and safety, or preventing illegal activities from occurring in the workplace.

2. Can You Test for Marijuana in States Where It’s Legal?

Yes, you can, as there are no legal restrictions against it as of yet.

Furthermore, there are no requirements in any state that you have to accept marijuana use on the company’s premises while on-duty.

There are, however, some states that expect employers to accommodate off-duty marijuana use.

These states generally have laws that state that an employee can’t be let go on account of having a medical marijuana card or taking part in a marijuana program.

In some cases, namely Delaware, Minnesota, and Arizona, drug testing is expressly addressed. They state that failing a drug test can’t be the sole reason for firing or refusing to hire an employee.

Additionally, in Maine, employers can’t test candidates for the use of marijuana and also forbid them to fire employees for marijuana use outside the workplace.

These 11 states provide employees with legal employment protection:

  • Arizona
  • Arkansas
  • Connecticut
  • Delaware
  • Illinois
  • Maine
  • Minnesota
  • Nevada
  • New York
  • Pennsylvania
  • Rhode Island

3. What About Prescription Medication?

Certain people may be required to take medication as part of ongoing treatment. Some of that medication might show up on a drug test.

Can you still fire them if this is the case?

The Americans with Disabilities Act states that an employer can’t discriminate an employee due to disability.

But if the medication was taken after the disability was cured, if it was consumed illegally, or if it prevents the employee from performing their job, then the employee may be let go.

4. Drug Testing Job Applicants

Usually, a job applicant can be tested for drugs as a condition for getting hired. There doesn’t need to be any particular suspicion of drug use by the potential employee.

In that case, however, all job applicants must be drug tested. There can be no discrimination against specific individuals.

In some states, there are restrictions on drug testing before employment. In California, for instance, drug testing may only be performed when the applicant has already received an offer of employment, provided they pass the test.

5. Can You Randomly Drug Test Your Employees?

It depends on your location.

In many states, you must have reasonable suspicion to have an employee tested. However, in other states, private employers may perform random drug testing on their employees as long as they notify them in advance. 

Generally speaking though, when it comes to risky and dangerous jobs, such as operating heavy machinery, employees can be drug tested without the need for reasonable suspicion.

6. Drug Testing Due to Reasonable Suspicion

In many cases, an employer must have reasonable suspicion that an employee has been taking drugs before conducting a drug test.

This means that the employer must have legitimate reasons to think that the employee has been consuming intoxicants. Those reasons must be grounded in facts and observation rather than discrimination.

Reasonable suspicion will vary depending on circumstances. But some examples include:

  • Witnessing drug use directly
  • Witnessing symptoms of being under the influence
  • An account from a reliable witness that someone is consuming drugs
  • Peculiar or unusual behavior at work
  • Significant drop in work performance

7. Can an Employee Refuse a Drug Test?

Yes, it’s always possible for an employee to refuse a drug test.

Though job applicants will likely be turned away by their potential employer. And an employee refusing to submit to a drug test can be fired, in which case they might have little in the way of appeal.

In fact, depending on the state, an employee who has been fired for refusing to be drug tested might not be able to claim unemployment benefits.

8. How Are Employee Drug Tests Performed?

Drug tests require a sample from the employee.

The most common one is urine, though saliva drug tests are becoming more popular. Other methods use blood, breath, or hair.

Those methods may have some differences, however. For instance, drug traces remain in hair for much longer than urine or saliva.

To Test or Not to Test

Now you know everything you need about employee drug testing in order to decide what’s best for your company.

Make sure to check the laws of your state if you’re in doubt about your or your employees’ rights. 

Adam Hansen