Employee Drug & Alcohol Testing

One of the more controversial employment practices is the testing of job applicants and employees for the presence of illegal drugs. Federal and state laws try to balance employee privacy against the employer's right to maintain a drug-free workplace. Because of concerns for privacy and accuracy, the laws regulating employment drug testing vary considerably between states. Despite the concerns, there is one steadfast rule; drug testing will continue.

Should It Be Done?

There is no question that employers have a right to have a drug-free workforce. As parents, we don't want our children to be taught by a drug addict. As consumers, we don't want to a buy a car equipped with safety features installed by an intoxicated worker, nor do we want to take off in an airplane at a busy airport when the air traffic controller is on a cocaine high. But do employers have the right to require that employees prove their innocence by taking a drug test? Anyone who has had to provide a urine specimen for a drug test at work probably was concerned about it being an invasion of their privacy and about the accuracy of the test.

Privacy Concerns

Our first major concern about employer-mandated drug testing is that it seems to be a blatant invasion of our right to privacy for the following reasons:

• The drug testing process, particularly for urinalysis testing, produces feelings of shame and humiliation in knowing that we are being observed to some degree
• The results reveal more about how we might have spent our weekend rather than about our ability to perform our job at the time of testing
• Testing can disclose information about other medical conditions, such as pregnancy or epilepsy, which we may want to remain private

Although employer-mandated drug screening tests have been found to trump individual privacy concerns, states vary widely on when testing is permitted:

• Some states permit random testing for sensitive or public safety jobs or employees currently in rehabilitation programs
• Some states allow permissive or unannounced testing of all employees
• Some states require the employer to have a reasonable suspicion of drug abuse
• Some states require a higher probable cause standard for suspecting drug abuse
• Some states won't permit testing at all unless the employer provides some type of rehabilitation program

Accuracy Concerns

There is good reason to be concerned about the accuracy of the results of employment drug testing:

• Cheap screening kits can yield false positive or error rates of up to 20% in detecting the presence of illegal drugs
• Tests are often administered by untrained personnel
• Specimens can be mislabeled or inadvertently switched from the time the test was administered to the time it was processed in a lab
• Urinalysis testing generally does not indicate whether a person is impaired at the time of testing
• Conversely, some urinalysis tests will identify certain pain remedies, diet pills, herbal teas and even poppy seeds as illegal drugs

Because initial drug screening tests can result in a large number of inaccurate results, a number of states require employers to confirm any positive findings from screening tests with more reliable and expensive confirmatory tests. On the other hand, states have also imposed criminal liability for those employees who attempt to "beat" the accuracy of drug testing methods by diluting, adulterating (adding substances) or substituting specimens.

When does Employee Drug Testing Occur?

Employee drug testing generally happens during:

• Applicant testing (the most common form)
• Random testing (frequently used for safety or security-related jobs)
• Post-accident testing (to determine whether drugs were involved in causation)
• Scheduled testing (during routine physical examinations)
• Treatment-related testing (to monitor employee efforts to remain drug-free after a treatment referral)

Impact of Testing Positive for Drugs

Just as states vary in allowing drug testing, states also vary in what action can be taken against an employee who tests positive for drugs or who refuses to submit to a drug test.

• Some states permit the employer to take disciplinary actions, including termination, without conducting some method of confirmatory testing
• Some states require confirmatory testing before disciplinary action can be taken, but the testing may not always be at the employer's expense
• Some states require that the employee enroll in a rehabilitation program, usually at the employee's expense

Unless you are in a rehabilitation program, federal and state disability and anti-discrimination laws don't provide much protection from disciplinary actions. Further, employees terminated for misconduct because of the use or possession of illegal drugs may lose any right to workers' compensation or unemployment benefits.

Finally, most states allow an employee to sue their employer for money damages or injunctive relief, if he or she is terminated or punished because of the employer's drug testing practices and the practices violate the drug testing statute. Injuctive relief is a court order requiring someone to do or refrain from doing a certain act. Some states will allow you to seek equitable relief such as reinstatement or back pay, and others will allow an award of punitive damages.

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