Drug Testing in the Workplace

Workplace Drug Testing Employee Rights and Concerns

This and the next three pages address employee rights and common concerns regarding drug testing in the workplace. Drug detection times are on page 5, while drug testing cutoff levels are on page 6.

Although it's called drug testing in the workplace or workplace drug testing, it might be conducted either inside or outside of your workplace. Both are just the most commonly-used terms for job-candidate and employee drug testing.

Legality of Drug Testing in the Workplace

Drug testing in the workplace became legal when President Reagan signed "Executive Order 12564 -- Drug-free Federal workplace". In turn, that spawned the Drug-Free Workplace Act of 1988. Although both apply only to the workplaces of Federal employers and Federal contractors and grantees, private-sector employers immediately followed the government's lead because they legally could.

However, there is much controversy over the legality of drug testing in the workplace, especially the legality of random drug testing. Many legal professionals consider it to be a personal privacy invasion and an unreasonable search and seizure, contrary to our rights granted by the Fourth and Fourteenth Amendments to the U.S. Constitution.

Subsequently, employee drug testing lawsuits have and continue to challenge the legality of drug testing. See a lawyer about challenging the legality in your particular situation.

Discipline for Failing Drug Testing in the Workplace

If you fail drug testing in the workplace, then the employer likely has the right to take disciplinary action against you, such as firing or refusing to hire you. However, the Drug-Free Workplace Act of 1988, certain Federal regulations and some state drug testing laws encourage or require employers to allow offenders to choose a substance-abuse treatment program in place of employment termination.

For example, instead of outright firing you, your employer might ban you from performing safety-sensitive duties until you successfully complete a course, counseling or treatment program and then pass a "return to duty" drug test. That's particularly so if you work in an industry regulated by the U.S. Department of Transportation (DOT) or for a company that follows Department of Transportation workplace drug testing rules.

The Department of Transportation tightened its return-to-duty and follow-up drug testing rules in 2009. For more information, see the blog post Alcohol & Drug Tests Toughen for Transportation Workers.

A state unemployment law might deny you unemployment benefits if you get fired for failing a workplace drug test, while COBRA or a state equivalent law might deny you extended health-insurance benefits for same. A state workers' compensation law might deny you workers' compensation benefits if you get injured on the job and test positive for a drug.

Considering all the legal obstacles that drug testing has and still faces, and the absence or lacking of state drug testing laws, you might be able to challenge related disciplinary action in court and win. Many employees have filed workplace drug testing lawsuits and won, even after they didn't pass drug tests. See a lawyer about challenging disciplinary action.

You likely won't be arrested, as failing a drug test is not the same as getting caught red-handed possessing or doing an illegal drug in the workplace. However, if your employer catches you possessing or doing an illegal drug, that's a different matter. Your employer has the right to call the police, who might arrest you. Keep in mind that "Big Brother" is likely to be watching you, whether or not you know it.

Next Page > Workplace Drug Testing Employee Rights and Concerns (Cont.)
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