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 include notice requirements under the Fair Credit Reporting Act, effective September 21, 2018.
A federal court in Connecticut has ruled that a failed drug test should not have disqualified a registered medical marijuana user from beginning employment.
Under a new law, Oklahoma employers may not discriminate against any registered medical marijuana user in hiring, termination or any other terms or conditions of employment. Oklahoma joins at least 30 other states that have legalized medical marijuana in some form.
Updated to reflect Oklahoma medical marijuana law, effective July 26, 2018.
Updated to reflect the state medical marijuana law, effective July 26, 2018.
Updated to include development regarding alcohol testing, effective July 1, 2018.
Updated to include Vermont recreational marijuana law, effective July 1, 2018.
Updated to reflect the prohibition of the use of handheld wireless communications devices while driving, effective July 1, 2018.
Updated to reflect Kansas City 'ban the box' law, effective June 9, 2018.
Legal considerations for HR concerning drug and alcohol testing of job applicants.