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 amendments to criminal history inquiries law, effective January 1, 2019.
Updated to reflect the Michigan Regulation and Taxation of Marihuana Act, effective December 6, 2018.
Updated to reflect the medical marijuana law, effective December 6, 2018.
Updated to reflect the Utah Medical Cannabis Act, effective December 3, 2018.
Updated to reflect forthcoming amendments to the New Orleans 'ban the box' ordinance.
Updated to reflect Michigan recreational marijuana law; Missouri and Utah medical marijuana laws.
Michigan has become the first Midwestern state, and 10th overall, to legalize recreational marijuana. Meanwhile, Missouri and Utah voters passed medical marijuana ballot initiatives.
Legal considerations for HR concerning drug and alcohol testing of job applicants.