Pre-Employment Drug Test Screening - What to Know
What You Need to Know About Pre-Employment Drug Tests
Even if you’ve never used illicit substances in your life, it’s important that you know the facts about your pre-employment drug test. Pre-employment drug testing is on the rise, as employers seek to ensure that they are compliant with federal and state labor guidelines, create safe and healthy workplaces, and take action to protect their employees.
In this article we’ll talk about the legality of a pre-employment drug test, what’s involved in typical employment drug testing, the tests that are administered, and what kinds of jobs require drug testing. We also want to make sure you know all you can about your rights when pre-employment drug screening is involved.
Are pre-employment drug test legal?
Yes, they are, and employee drug testing is often required of employers. This is especially true for positions in transportation, law enforcement, and other sensitive professions.
The US supreme court has held that both blood and urine tests are minimally invasive methods of pre-employment testing and are not harmful to employees. The major legislation that enforces this is the Drug Free Workplace Act of 1988. The act provides for employers being able to carry out reasonable testing to ensure safe and healthy drug free workplaces and is mandatory for federal contractors. Certain jobs may call for additional types of testing, such as the Department of Transportation’s regulations for CDL drivers.
What do pre-employment drug tests look for?
A Pre-employment drug test will usually test for what is called the SAMHSA 5. These are metabolites for the 5 major categories of drugs, for which the testing is required, according to the guidelines of the Substance Abuse and Mental Health Services Administration. SAMHSA is a division of the US Department of Health and Human Services that works to reduce substance abuse and increase mental health in the US.
The SAMHSA 5 categories are:
Employers may also test for specific substances in addition to these categories.
What kind of tests are administered?
Most employers require candidates to report to a drug testing facility and to submit to a urine test, which is the standard for pre-employment drug testing. If any of the categories on the panel come up positive, the employee will be contacted by an appointed physician who works at a medical review office (MRO) for an interview.
In a urine test, the sample is divided into two vials. If the first vial comes back with a positive result, then the second vial is tested, as urine tests have a 15% chance of generating a false positive. Most of the time, employers will offer an employee the chance to test again, but it’s important to understand that this is at the discretion of the employer. Most of the time, the recruiter will reach out to discuss the matter with you. False positives can be generated by certain over the counter medicines, vitamin supplements, poppy seeds or other circumstances. Further, the use of medical marijuana is covered in the State of New York under its disability law and the New York Compassionate Care Act.
What kind of jobs require drug tests for employment?
Most employers, even when not required to, will conduct a pre-employment drug screen as part of their drug free workplace policies. Employers in the fields of aviation, transportation, defense, transit and safety are required by federal regulations to conduct a pre-employment drug test. Hospitals, schools, and universities also customarily conduct drug testing as part of their HR policies.
What are my rights?
Your rights in regards to a drug test for employment can vary from state to state, but there are a few things to consider:
Even if marijuana is legal in your state, employers still may test you for THC and may still refuse employment on that basis. However, 11 states protect an employee’s right to use medical marijuana when not at work. These states have explicit medical marijuana protections for employees:
- New York
- Rhode Island
Note that employers can still terminate employees who are under the influence while at the workplace.
Using prescribed opiates is protected under the Americans With Disabilities Act. Under the ADA, employers cannot discriminate based on disability. However, if the medicine is interfering with your ability to perform your job safely, or if you are using the medication illegally, you can be fired. This is for informational purposes only and is not legal or medical advice, so be sure to consult with a disability lawyer if you feel this case may apply to you.
While it is legal for an employer to give all incoming employees a drug test, states such as California require that this can only be done if a job offer has been made. Other states often require written notice. Because of the variance, we recommend you check your specific state’s regulations.