Labor and Employment

Drug and Alcohol Testing During Employment

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley

Talk to a Local Labor And Employment Attorney

Can your employer ask you to take a drug test? Under what circumstances? Can your employer fire you if you test positive? If you take prescribed medication for a medical condition or disability, can your employer penalize you if it shows up on a drug test? What if you refuse to take a drug test—can your employer fire you? Can you collect unemployment?

Because federal law generally does not address drug and alcohol testing, the answers to all of these questions depend on your state’s law and your employer’s policies. Before you submit to a drug or alcohol test, you should learn your rights.

Private Versus Government Employers

If you work for the government, the federal Constitution offers you some protection when it comes to drug and alcohol testing. The Constitution protects everyone from “unreasonable search and seizure” by the government. Courts have interpreted this provision to mean that government employers must have a compelling reason to subject their employees to drug and alcohol testing.

The Constitution protects only against government intrusion, not against intrusion by private companies. Private employers, therefore, are not subject to this federal limitation on drug and alcohol testing. However, state laws may restrict a private employer’s right to test for drugs or alcohol.

Is Drug or Alcohol Testing Required?

Legally speaking, most private employers are not required to subject their employees to drug tests. The big exception to this rule is for transportation and other safety-sensitive industries that are regulated by certain federal agencies, such as the Federal Aviation Administration, the Federal Highway Administration, and the U.S. Coast Guard. Employers in these industries, for example, might be required to test at least certain employees for drug or alcohol use, such as drivers and pilots who could cause serious damage if intoxicated. Employers that contract with the Department of Defense or NASA might also be required to conduct drug and alcohol testing.

Otherwise, however, private employers do not have to test their employees. In a number of states, employers can receive a discount on workers’ comp insurance premiums by participating in a drug-free workplace program, which might require drug testing in some circumstances. However, adopting such a program is optional.

Is Drug or Alcohol Testing Allowed?

Although private employers are typically not required to drug test, some choose to do so. State law determines when employers are allowed to subject their employees to drug testing. Typically, employers are permitted to test under the following circumstances:

  • based on a reasonable suspicion that a particular employee is using drugs
  • following a workplace accident
  • when an employee returns to work after completing a drug or alcohol rehabilitation program, and
  • for employees in certain safety-sensitive positions (for example, employees who must carry a gun).

Many states (such as Georgia) also allow random drug testing, provided that employees are given advance notice of the policy.

Your Employer Needs a Written Policy

In most states, including Florida and Georgia, an employer that wants to test employees must have a written policy in place ahead of time. The policy typically must explain when tests will be administered, which employees must take them, what employees should do if they are taking legally prescribed drugs, how an employee can appeal a positive test result, and the consequences of testing positive or refusing to take the test.

If you are taking prescription or over-the-counter drugs that might show up in a drug test, you will generally have an opportunity to talk to a medical officer about the test results. Your employer may not fire or discipline you simply because you take prescribed medication for a disability. If the medication affects your ability to do your job, your employer must provide you with a reasonable accommodation, unless doing so would create undue hardship. (For more on this topic, see our article on requesting a reasonable accommodation for a disability.)

Special rules apply to medical marijuana as prescribed by a physician. To date, courts have found that employers may fire employees for testing positive for marijuana use, even if the employee has a prescription for medical marijuana and is not impaired at work.

Refusing to Take a Drug or Alcohol Test

Many states allow employers to fire employees for refusing to take a drug or alcohol test (as long as the testing is valid under the state’s laws). You might even be disqualified from receiving unemployment benefits if you are fired for this reason. Before you refuse a drug or alcohol test, do some research on your state’s laws. You can find out what your state requires by selecting it from the list at Nolo’s Testing at Work page.

Questions for Your Lawyer

  • Can my employer require me to take a drug or alcohol test under my state’s laws?
  • What procedures must my employer follow, and what rights do I have in the testing process?
  • Do I have a right to take a second test if I think I got a false positive?
  • Does my employer have to keep my test results confidential?
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