Is It Legal to Drug Test Employee?

For employees, hiring a candidate for a position without conducting a drug test first can be risky. The entire process of recruitment and hiring is costly for companies and selecting the wrong candidate can be a financial disaster for a company. Not only will they face performance loss but they would also be at risk of being sued from customers due to negligence or inappropriate behavior. Therefore, a lot of companies, especially small businesses, are considering adding drug-testing policies to their hiring process. Before you do that however, here are some things you should know:

Is It Legal to Drug Test Employees?

Whether it is your legal right to screen employees for drugs or not depends on their status of employment and your company policy. If you want to test your current employees for drugs, this should be clearly stated in the company policies. If there are no policies for drug screening, the company may not be in a position to conduct drug tests at random unless there has been an act of negligence and drug abuse is considered as a reason behind it. Even in that case, the company might only be allowed to test the particular employee responsible for negligence. If there are no policies regarding drug testing, the company cannot force employees for taking a drug test if they refuse.

If companies include drug testing as part of their hiring procedure, they have to be careful. In some states, drug testing for applicants is only legal when companies actually offer them a job. This means that a drug test for an applicant can only be conducted if he/she is seriously under consideration for the job. In the preliminary screening process for applicants, drug testing is not legal in many states and companies have to be careful about it. Some states, however, allow companies to drug test their applicants in the preliminary screening, if and only if they mention it clearly in their recruitment advertisement.

Can Your Employees Refuse to Take a Drug Test?

If a company doesn’t have any policies regarding drug testing, the employees can refuse to undergo random drug testing. If a company has good reasons to believe that an employee could prove to be a threat for the workplace environment due to drug abuse and he/she does not agree for a test, the company reserves the right to fire the employee if it has some proof. However, the company has to maintain equality among all employees so if a drug test is conducted, it is better to have it for all employees rather than one.

Legal Consideration for Drug Testing

If you decide to drug test your employees, certain legal limitations should be kept in consideration. If you don’t keep up with these legal considerations, your employee will be in a position to take legal action against you:

Don’t Discriminate
If you are carrying out a drug test without any particular reason, you shouldn’t subject selected employees to it. Rather, it should be an organization-wide procedure. While the law doesn’t say anything about this, it only means you will expose yourself to discrimination lawsuits and that is something seriously questionable under the law.

Organizations Receiving Federal Funding Needs to Drug Test Employees
Organizations that have federal contracts of $100,000 or more or receive federal grants for their operational purposes are required by law to conduct drug tests for employees under the Federal Drug-Free Workplace Act.

Employee Consent Is Required
If you want to conduct drug testing, you have to inform them about it and obtain their consent. If you collect specimen samples for drug testing without the consent of your employees, it is illegal.

Check State Laws
Laws related to drug testing are different across states and companies need to learn about their specific state laws before they can conduct a drug test on their employees. In some states, you are obliged to pay for the drug tests of employees while in some states it is illegal to test job applicants until an offer is made.

So, while it is indeed legal to drug test employees, you have to be mindful about the conditions under which a drug test is allowed. To simplify things, companies should also have clearly specified policies regarding drug-testing. That would give companies the right to conduct drug tests periodically for all employees with their consent.

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