The Gittes Law Group

Columbus, Ohio Employment Attorneys

Drug Testing

This page provides answers to the following questions:

1. Can my employer legally require me to take a drug test?

2. I'm applying for a job and my employer wants to give me a drug test. Is that legal?

3. My employer has a policy that I can be tested if he/she has reasonable suspicion that I am taking drugs. Is that legal?

4. What does having a "reasonable suspicion" to test for drugs mean?

5. Can my employer randomly test me for drugs without having reasonable suspicion?

6. I was involved in an accident and my employer wants me to undergo a drug test, is that legal?

7. I'm involved in a counseling or rehabilitation program for drug use through an employment assistance program (EAP). Can my employer still test me for drugs?

8. How do employers test for drugs?

9. My employer wants me to undergo a drug test and requires that someone watch me while I urinate. Is that legal?

10. If I test positive for a drug test, what kind of action can my employer take?

11. I tested positive for marijuana use and my employer wants to fire me, but I know that other employees also tested positive but weren't fired. What can I do?

12. I tested positive for drugs but I think the test was inaccurate. Can I challenge the accuracy of the test?

1. Can my employer legally require me to take a drug test?

Yes. Federal, state and private employees are all subject to drug testing.

Many federal employees, such as those who handle classified information, those who work in national security, law enforcement officers, employees with duties to protect property, life, health and safety, and even the President are subject to drug testing Executive Order 12,564 (5 U.S.C. §7301). The Supreme Court has ruled that while drug testing does infringe on an employee's privacy, it can be necessary in order to protect the health and safety of others Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989).

Most state laws are similar to federal laws and usually have upheld the legality of drug testing of state employees. Certain states, such as California, have said that while it is legal to give drug tests to any incoming employees, there must be cause to test current employees.Additionally, California requires that drug testing is justified in only very limited and strictly defined circumstances.

Many private employers require that their employees undergo drug testing. State and local laws vary in the way that they protect private employees' privacy, but private employers may often test employees for health and safety reasons, as well as to increase productivity at the workplace, and to prevent illegal activities in the work place that derive from drug-related activity Finkin, Privacy in Employment Law (1995) pg 19.

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2. I'm applying for a job and my employer wants to give me a drug test. Is that legal?

Yes. In most cases, an employee seeking first-time employment can be tested as a condition of employment, even if there is no cause or reason to believe that the prospective employee has been taking drugs. The employer, however, must test all incoming employees for drugs and must not be singling you out for special treatment.

However, some states have imposed limitations on pre-employment drug testing. For example, California allows a drug test only after the applicant has received an offer of employment conditioned on passing the test. In other states,employers that test are required to provide written notice or indicate in their job postings that testing is required.

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3. My employer has a policy that I can be tested if he/she has "reasonable suspicion" that I am taking drugs. Is that legal?

Yes. Just like incoming applicants can be tested for drugs, so can existing employees. The only difference is, in most cases, your employer must have reasonable suspicion that you have been taking drugs before you can be tested.

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4. What does having a "reasonable suspicion" to test for drugs mean?

Reasonable suspicion means that the employer has a legitimate reason, based on logic and facts, to believe that you have been taking drugs, and isn't just guessing, speculating or discriminating against you. However, reasonable suspicion can vary. Examples of reasonable suspicion include but are not limited to:

[Arrow] Direct observation of drug use or physical symptoms of drug use (slurred speech, uncoordinated movement, etc.)
[Arrow] Abnormal conduct
[Arrow] A report from a reliable source that an employee is using drugs
[Arrow] Evidence that an employee has tampered with his/her drug results
[Arrow] Erratic behavior while at work or significant deterioration in work performance
[Arrow] Evidence that the employee has used, possessed, sold, solicited, or transferred drugs while working or at work

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5. Can my employer randomly test me for drugs without having reasonable suspicion?

It depends. Many states require that there must be reasonable cause in order to test an employee, and employers that have not complied with this have been successfully sued. State law varies, however, and in some states, private employers are permitted to randomly test their employees, even without reasonable suspicion, as long as advance notice is given Finkin, <i>Privacy in Employment Law</i> (1995). Courts have also generally held that no cause is needed to randomly test current employees in jobs that pose a serious risk of human injury or property damage.

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6. I was involved in an accident and my employer wants me to undergo a drug test, is that legal?

Yes. Federal law permits employees to be tested for drugs during investigations of accidents Executive Order 12,564 (5 U.S.C. §7301). Although state laws vary, in most states, it is legal to test employees for drugs following a workplace accident.

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7. I'm involved in a counseling or rehabilitation program for drug use through an employment assistance program (EAP). Can my employer still test me for drugs?

Yes. Even though you are undergoing rehabilitation, your employer still has the right to test you for drugs to make sure that you are complying with the program Executive Order 12,564 (5 U.S.C. §7301.

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8. How do employers test for drugs?

Urine is the most common specimen used to test for drugs, but blood, breath, or other specimens can be used as well. Hair may also be used to test for drugs and is growing to be a popular and judicially accepted way to conduct drug testing. Drug residue remains in hair for a much longer period of time than it does in urine or blood.

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9. My employer wants me to undergo a drug test and requires that someone watch me while I urinate. Is that legal?

Usually not. A number of courts have found it to be an unfair invasion of privacy to watch employees urinate. Most courts, however, have held that it is reasonable to enforce other safeguards that protect against tampering with urine specimens, such as: listening to an employee urinate, the dying of toilet water, requiring employees to wear hospital gowns, and checking the temperature of urine.

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10. If I test positive for a drug test, what kind of action can my employer take?

If you are a federal employee, the Executive Order requires that action be taken if you test positive for a drug test Executive Order 12,564 (5 U.S.C. §7301). You will be referred to an employee assistance program (EAP), and you must comply with the program's rules and cease future drug use, or else you will be subject to termination.

State and private employers have their own policies if you test positive for drugs, and these often include mandatory rehabilitation, firing, or not being hired for the position in the first place. While some employers choose to do so, a private employer is not required to allow you to complete rehabilitation or give you a second chance before firing you for drug use.

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11. I tested positive for marijuana use and my employer wants to fire me, but I know that other employees also tested positive but weren't fired. What can I do?

Although employers are not necessarily required to treat their employees fairly and equally, the failure to do so may subject your employer to a discrimination lawsuit if certain types of employees are treated differently. Check with your state department of labor, or a private attorney, for more information to help you determine whether you may be able to bring a discrimination case. If you are a member of a union, you also may be able to file a grievance over your termination.

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12. I tested positive for drugs but I think the test was inaccurate. Can I challenge the accuracy of the test?

It is mostly up to the laws in your state to determine what actions you can actually take, however, there are some methods of recourse that may help you challenge. If you are a member of a union, you may be able to file a grievance over your termination that challenges the accuracy of the test. You may check with your state department of labor for more information, a private attorney, or you can also contact the following advocates for help and more information:

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