Can I Drug Test My Employees?

By Jay Shelvin posted 12-10-2019 08:55 PM


You may want to drug test your employees to make sure your workplace is safe, employees are productive and you’re not faced with any liabilities stemming from drug use. However, you can’t just do drug tests on everyone without understanding when it is legal to test for drugs and when doing so would be invasive.

Drug tests for potential employees

You can require a drug test of someone to whom you have offered employment and make employment contingent on passing the test. If you do this, you need to do it for all potential employees and not just single out a few, as this could be regarded as discrimination. 

One of the easiest and quickest ways to test for drugs is to do a saliva drug test. It is as accurate as a urine test, provides quick results and there is no need for the use of a bathroom. 

Drug tests without advance warning

Drug tests can be done without advance warning if an employee is in a safety-sensitive job. Companies in industries like defense, transit, transportation, defense and aviation must test applicants and employees for drug use to protect the health and safety of others.

Many federal employees, such as those working in national security or law enforcement, are subject to drug testing. State and county employees are also usually subject to drug testing as well as for employees at schools, universities and hospitals. 

In the course of an accident investigation, federal law allows employers to test employees for drug use. 

Drug tests on reasonable suspicion

You can’t just drug test an employee you have a hunch may be taking drugs in the workplace or who is rumored to use recreational drugs outside of work hours. If you are suspicious about an employee’s possible drug use, you can only drug test if there is a legitimate reason for doing so, such as when:

  • An employee displays behavior that is impacting job performance and has observable signs of impairment that could be related to drugs. This may include symptoms like slurred speech, jittery hands, an inability to focus, and red eyes. 
  • You receive a report from a reliable source about drug use. 
  • You have hard evidence of use, possession, selling or soliciting drugs while in the workplace. 

If you have reasonable suspicion, you will need to confront the employee. The employee might deny taking drugs and offer a reason for strange behavior. For instance, the person could be suffering from a medical condition or a lack of sleep. If you go ahead with drug testing in such a scenario, you could breach employee privacy. 

If you require a drug test, it must be done with the express permission of the employee, or with plenty of facts and logic to back up your suspicions. 

Drug tests for marijuana use

Marijuana use may be legal in some states but employees are not allowed to come to work impaired, even in states that prohibit discrimination against registered cardholders who use medical marijuana. 

Any actions you take against an employee who is high whilst at work must be backed up by thoroughly documented, objective signs of impairment. This is particularly relevant when it comes to marijuana use, as it can show up in a drug test even thirty days after use. 

You can’t determine exactly when it was taken and there are some states that require employers to accommodate off-duty marijuana use. 

Consequences of a failed drug test

Punishments for a failed drug test can include termination, losing employment benefits or rehabilitation.

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