Overview: As a matter of law, preemployment drug testing generally is permitted. As a result, some employers test job applicants for substance abuse because such use may impair job performance, increase absenteeism and create safety hazards.
Employers must administer their drug testing programs in a uniform manner to avoid the risk of a discrimination lawsuit. They also must confirm the accuracy of any drug tests, including having chain-of-custody procedures and tampering safeguards in place. In addition, any applicable state drug testing laws must be followed.
There is a key distinction between drug tests and alcohol tests under the Americans with Disabilities Act (ADA). The ADA does not consider drug tests to be medical examinations so they may be administered even before a conditional job offer is made. In contrast, alcohol testing should only take place after an employment offer has been extended that is conditioned on passing a medical exam, and if it is job-related.
In unionized workplaces, the National Labor Relations Board (NLRB) has decided employers need not bargain with labor unions before drug testing job applicants because there is no economic relationship between the employer and an applicant.
Trends: The use of medical marijuana has been legalized in 23 states plus the District of Columbia. Even in these states, however, such usage generally is not a justification for a failed drug test. And, employees are still prohibited from using marijuana for medicinal purposes in the workplace.
Author: David B. Weisenfeld, JD, Legal Editor
Updated to reflect recreational marijuana ballot initiatives in California, Massachusetts and Nevada, and medical marijuana ballot initiatives in Florida, Arkansas, Montana and North Dakota.
Updated to reflect forthcoming laws expanding employer requirements regarding juvenile records and transportation network criminal background checks.
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Updated to reflect a forthcoming New Orleans credit check ban for city contractors.
Updated to reflect the Portland 'ban the box' ordinance, effective July 1, 2016.
Updated to reflect a forthcoming ban on criminal history questions on an initial job application.
Enhanced to improve the comprehensiveness, organization and scope of coverage.
Updated to incorporate the statewide ban on handheld phone use by commercial motor vehicle drivers, effective July 1, 2016.
Updated to reflect forthcoming state ban the box law affecting private employers.
Legal considerations for HR concerning drug and alcohol testing of job applicants.