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Drug Testing During Hiring

Many private and public employers attempt to test prospective employees (and employees already on staff) for drug and alcohol use. Although increasing in popularity among employers, such tests are not always legal. The following discussion provides information on when (and whether) a drug test may be used in the pre-employment phase.

U.S. Supreme Court Rulings

The United States Supreme Court has held that both blood and urine collection are minimally intrusive procedures which are not harmful to job applicants or employees, when they are conducted in the employment environment (such as where applicants or employees are required to go to a doctor's office to provide a sample) without direct observation by the tester.  In other words, it may be an invasion of privacy for an employer to require a job applicant to provide a urine sample while other people are in the room watching.  However, if there are concerns that an applicant will tamper with the sample, the employer may be allowed to have one other person of the same sex as the applicant present when the sample is given.

Federal Law

The major federal law governing the use of drugs and alcohol in the workplace is the Drug-Free Workplace Act of 1988.  This Act basically states that any employer who receives federal grants or contracts must be drug-free, or it risks losing the federal funding.  The Act does not, however, contain any provisions that specifically allow for workplace drug testing.

In addition to the federal Drug-Free Workplace Act, other federal laws also touch upon and concern drug use in the workplace, such the Americans with Disabilities Act (which classifies alcoholism as a protected disability) and the Family and Medical Leave Act. 

Specific federal agencies or departments may also have drug-testing policies in place. For example, the Department of Transportation has regulations that require drug testing of more than 8 million different employees, such as truck drivers.

State Law

Each state has its own body of laws governing workplace drug testing or monitoring.  For example, Alaska has no mandatory drug-testing laws, but does have voluntary drug-testing laws that employers must follow if they choose to conduct drug testing of job applicants or employees.

In many states, employers have the legal right to test job applicants for drugs or alcohol, provided that the applicants know that the testing is part of the interview process for all employees. In most cases, the testing cannot be conducted until the applicant has been offered a position.

Testing Limits: Selective Testing, Test Type, and Covert Tests

An employer may face legal difficulties if it chooses to test only certain applicants for a position.  In other words, an employer cannot pick and chose (based upon educational experience, demeanor, looks, or any other characteristic) which applicants it will test for drugs or alcohol.  The employer must treat all applicants for the same job in a similar manner.

Most state statutes also limit the type of testing that may be performed, whether it be through urine, breath, blood, or hair. Hair testing is the newest method of drug testing and can accurately test for drug use within the previous 90 days, according to its proponents.  Urine testing, on the other hand, generally only provides accurate results for the previous five-day period.

If an employer tests an applicant in a covert manner, without the applicant's knowledge or consent, the employer can face serious legal difficulties.  For example, an employer may not pick up stray pieces of hair that an applicant inadvertently left on a chair during the interview and test them for drugs unless the applicant knows the employer is doing so.  

Next Steps
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(e.g., Chicago, IL or 60611)

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