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 expunged criminal records laws, effective December 20, 2017.
Updated to reflect state 'ban the box law', effective January 1, 2018.
Updated to reflect an exception to the prohibition of the use of a wireless communications device while driving, effective October 11, 2017 and a forthcoming law relating to the use of such a device while driving.
Updated to reflect extension of mandatory background check requirements to temporary staffing agencies, effective July 1, 2017.
In a first-of-its-kind ruling, a federal district court has held that the federal marijuana ban does not preempt a Connecticut law protecting job applicants and employees from being discriminated against based on their lawful medical marijuana use.
Updated to reflect an amendment relating to a driver's use of a wireless communication device while driving.
Updated to reflect an amendment relating to a driver's use of a wireless communication device while driving, effective July 31, 2017.
The Massachusetts Supreme Judicial Court has ruled that a fired employee who failed a drug test because she was taking medical marijuana to treat Crohn's disease can sue her former employer for handicap discrimination.
Enhanced to include more detailed coverage of the Criminal Offender Record Information law.
Updated to reflect law implementing voter-approved medical marijuana amendment, effective June 23, 2017.
Legal considerations for HR concerning drug and alcohol testing of job applicants.