There is no legal requirement for most private employers to have a drug-free employment policy. Exceptions to this are federal contractors and dealers, as well as industries and positions sensitive to safety and security. Employers may require workers who appear to be disabled or who otherwise violate the employer's drug and alcohol testing policy to be tested for drugs on reasonable suspicion. Even in jurisdictions that authorize the use of marijuana and marijuana-based products for medical or recreational reasons, laws allow employers to sanction workers who come to work with health problems. Reasonable suspicion is a useful tool for addressing perceived disability or violations of drug and alcohol policies.
If an employee appears to be disabled or is suspected of having violated your drug and alcohol policy, requesting a test is a reasonable way to gather additional information as you formulate a response. You don't have to be a substance abuse expert to determine a reasonable suspicion. Instead, you're looking for behavior that's out of the ordinary and worrying for that employee. If the employee's explanation of what they're seeing simply doesn't make sense, a drug test is a way of trying to understand what's happening. Generally speaking, if someone admits that they've violated your policy, you don't need a test result to take action.
Employers have the right to expect that workers are not high or drunk on the job. However, they should not have the right to require employees to prove their innocence by taking a drug test. The Equal Employment Opportunity Commission has said that these exams should take place after a conditional offer of employment has been made, as the employer may need to ask follow-up medical questions to job applicants based on the results. If you're an employer and you're not sure if you should or can drug test your company's candidates and employees, you'll want to know your rights as an employer and the rights of your employees. While employers may require most job seekers to undergo drug testing as a prerequisite for hiring, some substantial restrictions, which vary from state to state, apply to private testing conducted by employers.
Some employers are federal contractors or hire drivers and must comply with specific labor laws that prohibit drug use. If an employee appears to be disabled or has been involved in an accident that may have been caused by drug use, employers in states that allow workplace testing based on reasonable suspicion from the employer can perform a drug test. If an employer seeks to test its employees and job applicants for illegal drugs, it must comply with applicable laws. Justia offers a survey in 50 states on workplace drug testing laws, including appropriate situations in which an employer can test for drugs.
