When drug testing is conducted with appropriate procedural safeguards, is consistently applied, and is implemented as part of a policy that is well-communicated, drug testing benefits the employee and the employer. In fact, 20 Gallup surveys of employees conducted by the Institute for a Drug-Free Workplace (two national surveys, a Canadian national survey, and 17 state surveys) without exception demonstrated an increasing intolerance among employees for drug abuse and drug abusers, and an acceptance – if not an expectation – that employers take strong steps to provide drug-free workplaces.
Most workers are not drug abusers, do not want to work side-by-side with drug abusers, and favor strong substance-abuse-prevention policies and enforcement of those policies. Drug abuse in the workplace is not a labor-management problem; it is a common concern of both employees and their employers.
Is Drug Testing By Employers Legal?
Yes, drug testing is legal and – in fact – is the norm in American workplaces today for job applicants, and for employees at most major companies and/or for employees in safety-sensitive positions.
There are restrictions on who and how to test in some states and several cities. On the other hand, nearly 20 states have laws which encourage drug testing by providing employees with workers’ compensation discounts and/or a shield to possible legal liability for taking adverse employment action based on a drug-test or alcohol-test positive – if they provide policy and testing safeguards.
The most restrictive states are Maine, Vermont, Connecticut, Rhode Island, and Minnesota and the most restrictive cities are Boulder and San Francisco.
However, most statutes enacted in recent years are pro-drug-testing, and employers have the option of testing in almost all jurisdictions and taking adverse employment action based on drug-test positives – including in states with liberalized marijuana laws.
What Are the Ramifications of Failing a Drug Test?
The employer has the right – if not the obligation – to take disciplinary action if an employee fails a drug test. Most often, the employee who tests positive for illicit drug use has his or her employment terminated. However, termination of employment is not the only possibility. Rather than firing an employee, an employer may choose to remove that employee from performing safety-sensitive duties for a period of time until the employee can demonstrate that he or she has successfully completed a treatment program and passed a “return-to-work” drug test. This is the employee’s option. A job applicant who fails a drug test is virtually always denied employment.
If the employee is fired for failing a drug test, state unemployment laws may deny that employee unemployment benefits and COBRA or another state equivalent could deny extended health-insurance benefits as well.
Workers’ compensation benefits also may be denied if an employee is injured on the job and tests positive for drugs in a post-accident drug test or is otherwise determined to have engaged in substance abuse which contributed to the accident and injury.