Can Your Employer Randomly Drug Test You Without Cause?

Table Of Content

• Introduction
• When are drug tests administered?
• Can a company randomly drug test its employees without cause?
• Guidelines for a random workplace drug test
• When is suspicion reasonable?
• Conclusion

1. Introduction

With increasing instances of drug abuse, drug testing is one way an employer can check for drugs in his/her employees’ or job applicant’s system. Abuse of alcohol and drug at workplace create a significant safety and health hazards and results in decreased productivity and poor employee spirit. It also can lead to additional expenses in the form of health care claims, especially short-term disability claims. 

Here are the common reasons employers perform drug testing for:

• Prevent workers from abusing alcohol and drugs
• Stop electing people who use unlawful drugs
• Be able to identify early and aptly refer employees who have drug and/or alcohol issues. 
• Provide a safe workplace for employees
• Protect the general public and introduce consumer faith that employees are working cautiously
• Comply with State laws or Federal regulations 
• Benefit from Workers’ Compensation Premium Discount programs

2. When are drug tests administered?

There are a variety of situations under which a company may require a drug test. Following are the most common reasons for drug testing at workplaces:

• Pre-Employment: Pre-employment testing is conducted to restrict employing individuals who illegally use drugs. It typically takes place after a provisional offer of employment has been made. Candidates agree to be tested as a condition of work and are not hired if they fail to provide a negative test. However, employees can qualify for a pre-employment test by stopping their drug use several days before they expect to be tested. Therefore, some employers try probationary employees on an unannounced basis. Some states, however, restrict this process. Moreover, the Americans with Disabilities Act (ADA) of 1990 forbids pre-employment testing for alcohol abuse.
• Reasonable Suspicion: Reasonable suspicion testing is similar to and sometimes related to “probable-cause” or “for-cause” testing and is conducted when executives document noticeable signs and symptoms that lead them to suspect drug use or a drug-free workplace management breach. It is required to have clear, uniform definitions of what behavior explains drug and alcohol testing, and another supervisor or manager should confirm any doubt. As this type of testing is at the will of authority, it requires careful, overall supervisor training. Besides, it is advised that employees who are suspected of drug use or a policy violation not return to work while anticipating the results of drug testing.
• Post-Accident: Testing following an accident helps to determine whether drugs and/or alcohol were factors behind the accident. It is crucial to building unbiased criteria that will trigger a post-accident test and how and by whom they will be defined and documented. Examples of criteria used by employers include:
• Casualties.
• Injuries that need anyone to be separated from the site for medical care.
• Damage to the property above a specified fiscal amount.
• Citations announced by the Mounties.

Although the motive of a post-accident test is to determine drug abuse, a positive test result itself can not prove that the use of the drug caused the accident. When post-accident testing is conducted, it is considerable for employers not to permit employees involved in an accident to return to work before or following the testing. Employers also need to have guidelines to stipulate how soon following an accident, testing must happen, so results are relevant. Substances reside in a person’s system for different amounts of time, and it is usually suggested that post-accident testing should be done within 12 hours of the incident. Some employers would increase the test trigger to incidents even if an accident or injury were avoided and use the term “post-incident.”

• Random: Random testing is performed on an unannounced, variable basis on employees whose distinguishing information (e.g., employee number) has been placed in a trial pool from which a carefully random selection is made. This selection is customarily computer-generated to assure that it is indeed random and that each person of the workforce community has an equal chance of being selected for testing, despite whether or not that person was recently tested or not because this type of testing has no prior notice, it serves as a restraint.
• Periodic: Periodic testing is usually advance and uniformly administered. Some employers use it on a yearly basis, especially if physicals are required for the job. These tests typically are more admitted by employees than unannounced tests, but employees can prepare them by stopping their drug abuse several days before.
• Return-to-Duty: This testing involves a one-time, announced test when an employee who was tested positive earlier has completed the required rehabilitation for substance abuse and is ready to return to the workplace. Some employers also employ this type of testing for any employee who has been away for an extensive period.
• Other: Some employers also use different types of tests. For example, follow-up testing or post-rehabilitation testing is administered regularly after a worker returns to the workplace upon completing recovery for a drug or alcohol problem. It is carried on an unannounced, random basis for a duration stipulated in the drug-free workplace policy. Another type of testing, blanket testing, is similar to random testing in being unannounced and not based on individual doubt; however, everyone at a worksite is tested rather than a randomly selected percentage. Other types of testing include voluntary, probationary, pre-promotion, and return-after-illness testing.

3. Can a company randomly drug test its employees without cause?

Ordinarily speaking, state laws typically permit employers to test job candidates for drugs. However, the employer must follow the state's rules about giving notice and following procedures designed to prevent bigotry and fallacious samples. For example, several states allow applicant testing only if:

• It is before-mentioned to the candidate that such testing will be part of the screening process for new workers (for example, because the employer's online job posting mentioned that a drug test would is needed).
• The employer has already given the applicant the job on the condition that s/he passes a drug test.
• All candidates for the same position are tested so.
• A state-certified lab conducts the tests.

Today, most companies that plan to administer drug testing on job applicants include an agreement to submit to that testing in their job applications. If you are asked to agree to drug testing in the process of applying for a job, you have limited choices, i.e., to agree to the test or drop out as an aspirant.

There are some legal limitations on testing employees for drug abuse in most private hiring jobs. In some states, organizations cannot administer blanket drug tests or random drug tests of all workers. The testing must be directed on an individual, either because the employer has an excellent reason to believe that the person is doing drugs or because the person's job is such that if performed under the influence, there is a high risk of injury or damage.

Governments have usually ruled that corporations may test employees after an accident that could have been prompted by drug use or an episode in which the employee seemed to be injured. For example, a bulldozer driver who moved the machine through a field jammed with workers could be the legitimate target of drug testing. And a legal secretary found collapsed at her desk, unable to respond to questions asked to her, was also considered a fair candidate for a drug test.

4. Guidelines for a random workplace drug test

There are a few guidelines for random drug testing in the workplace. The first and single most essential step is to include a selection of a written policy. The company must work with a licensed attorney to state and execute an approach following the state laws. This will inform the possible hires early in the application process and obtain their approval before testing. The company must conduct a pre-employment test only after making a contingent proposal to the potential employee. It is illegal in the States to test without a  proposal being made first. To avoid claims of prejudice, test all the employees.

The employer must lodge by the two types of legally accepted drug testing methods. A random drug test, which has the potential to create feelings of anxiety and skepticism within the workplace, is administered unannounced on all current workers. Reasonable-suspicion testing is performed when an employee displays suspicious behavior of unlawful drug abuse or after an accident occurs; this protects companies from a discrimination claim only if a written policy clearly defines suspicious behavior or accidents.

Organizations must comply with state laws and preserve confidentiality. Employers and courts encourage to have a last chance agreement in place. Instead of dismissing an employee who tests positive for illegal substances, the thought of providing the employee a final chance to comply with the company’s policies is a viable way for employees to remain employed after perpetrating a breach.

There are regulations in place because businesses make repetitive errors when conducting workplace drug and alcohol testing. The most common type of error in implementing the Department of Transportation’s drug and alcohol testing statute to all employees and not just the specific group which qualifies. Some companies don’t realize that state and local drug testing laws differ extensively.

As five states do not allow corporations to dismiss an employee who tests positive the first time, some authorities regulate disciplinary results that may be imposed for testing positive. Companies that have an indefinitely written policy leave many questions unanswered, such as the type of test administered and what specimens will be tested, and what happens when an employee refuses to be tested.

Applying self-contradictory disciplinary outcomes for positive test results and failing to administer reasonable suspicion tests immediately can lead to a prosecution. Missing to follow through with reasonable suspicion testing after hearing the employee’s excuse or failure to document why the test wasn’t done leaves room for discrimination claims.

5. When is suspicion reasonable?

Many states allow an organization to test for narcotics based on a reasonable suspicion that an employee is under the drug's influence. What suspicion is relevant and what is not is in the beholder's eye, which makes it a tricky standard indeed.

But some statutes and courts have strived to set some guidelines that may be considered if an employee is targeted for a test and s/he believe his/her employer's suspicions are more petite than reasonable. Reasonable doubt of drug abuse must generally be based on facts and logical reasoning, such as:

• direct perception of drug use or its physical symptoms, including slurred speech, disturbed or passive attitude, uncoordinated actions, and inappropriate responses to questions
• abnormal demeanor or erratic behavior while at work, or significant decline in work performance
• a statement of drug abuse produced by a reliable and trustworthy source that has been independently verified
• proof that the employee has tampered with current drug test results
• information that the worker has caused or contributed to an accident at work, or
• an indication that the employee has used, possessed, sold, requested, or transferred drugs while working.

Also, many laws require employers to maintain workplace counseling and outreach programs before they can test employees. While most organizations these days are too savvy to slip up on procedural details, many of the laws are so picky and detailed that it may be worth one's time to make sure the test made the grade.

6. Conclusion

Drug testing in the workplace is becoming crucial with increased instances of drug abuse. A random drug test can be conducted, but only if all the state laws and regulations are followed while doing so.