Random Drug Testing: Business & Workers Rights to Know
Whether you are a business manager or a potential employee, random drug testing is an important subject. Many businesses use random drug testing to lower liability costs, protect worker safety, and avoid litigation. It’s the responsibility of businesses to maintain safe, drug free workplaces in accordance with the law. But with the recent legalization of marijuana in several states, this issue has become murky. Here are some facts to clear up misconceptions surrounding the state of random drug testing policy.
Pre-employment drug testing is a requirement for being hired at many US businesses. This usually involves a urine test for several drugs, including THC (found in marijuana), nicotine, alcohol, barbiturates, amphetamines, and the like. An important thing to note is that failing a pre-employment drug screen can result in having an employment offer revoked – this is state law in most cases, not employer choice. Most states also have on the books random drug test laws, which must apply regardless of employer choice.
Are pre-employment drug tests legal?
Yes, in all US states. For certain professions, pre-employment drug tests are mandatory, especially those under the administration of the US Department of Transportation. However, Canada has a strong policy against pre-employment drug testing, although employers in Canada can take action if certain behaviors are exhibited in the workplace. Pre-employment drug testing laws should be clearly spelled out in the company’s drug free workplace policy.
Random Drug Testing At Work And Your Rights
In order to conduct pre-employment and random drug testing, current and prospective employees in the US must be made aware of that firm’s drug-free workplace policy. Flyers, handbooks, and signage must be conspicuously available in break rooms, parking lots, and entrances.
What is a “drug-free” workplace policy?
This is a company policy that details how pre-employment and random drug testing takes place, what employee’s rights are under the law, and access to drug treatment resources for employees (who are protected under disability and discrimination laws). This also includes the awareness training necessary for managers to deal with workplace substance abuse.
Does an employer have to tell you about drug testing?
Can an employer drug test without notice?
Yes, on both counts. All of this must be in a written policy that is available at any time to employees. The policy should also include disciplinary actions that will be taken upon positive testing for substance abuse. However, the employer does not have to tell you when random tests take place - only the standard policies as detailed in their drug free workplace policy. Random drug testing laws vary from state to state and should be referenced in the corporate policy.
How can employers test for drugs?
This varies state by state. Generally, employers can call for a pre-employment drug screen, usually involving a urine test. The testing policy for employees must apply to all employees.
Employers may also randomly test up to 50% of their company’s workforce per year. The
most efficient way of doing this is by testing a small percentage once per month.
Random drug testing at work is not intended to “catch” employees, but to reduce overall substance abuse in the workplace. Employers are often more interested in treating employees as opposed to firing or prosecuting them. This is why most large companies have Employee Assistance programs that they can use to refer employees to confidential treatment programs. Random drug testing in the workplace is as much about preserving employee health and welfare as it is about maintaining the bottom line.
What drugs do companies test for?
Usually, companies test for amphetamines, cocaine, marijuana, methamphetamines, opiates, nicotine, and alcohol. They may not test for all of these substances in the same test, but the best way to pass a drug test is to make sure that none of these substances are in your system. Most substances take upwards of 5 days to metabolize from your system.
The national institutes of health give these detection windows for the most common recreational drugs.
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What does “reasonable suspicion” mean?
The Society For Human Resource Management uses a number of criteria to determine “reasonable suspicion” which can include, but is not limited to:
- Late attendance
- Sleeping on the job
- Shaky or unsteady movements
- Bloodshot eyes
- Sudden mood changes, angry outbursts, and inappropriate laughing
Actual criteria for “reasonable suspicion” vary from state to state, but these need to be included as part of the company’s written policy. These criteria need to be recorded in the presence of at least two managers and documented as part of the company’s HR process. Only then will the employee be called in for a drug screening.
Am I legally required to take a drug test?
The US 4th Amendment prohibits unwanted searches by authorities, but drug tests are usually a condition for employment, so are essentially mandatory for job positions. The US Federal Transit Administration has required that random drug tests at work must be increased from 25 to 50% as of 2019. This is for businesses that exist under the FTA’s drug and alcohol rule. The legal qualifications for drug testing should be detailed as part of an employer’s drug free workplace policy.
Failure to pass a drug test does not give the employer the right to automatically terminate an employee, but penalties must be detailed in the drug free workplace policy. These can include referral to treatment, termination, demotion, and removal of unemployment benefits. These will be detailed in the written policy, as well as state law.
Need to know more about drug testing? We can help!
Drug testing is a complicated legal issue, both for employees and employers. At Countrywide Testing, we have a wide array of products and services that can help you understand drug testing or put together a program that will protect your business and your employees. Reach out to us with your questions today or visit our lab testing services page to learn more.