Most employees that operate heavy machinery, vehicles, provide healthcare, or work as part of a federal contract, need to comply with the federal regulation and typically drug test you but not always. Within Department of Transportation, Drug test is mandatory.
As it currently stands, all personnel belonging to the military, the federal government, and contractors should be screened for the presence of drugs within their system, mainly cocaine and MMJ.
Therefore, even though such substances may be legal in a particular state, they are federally banned.
Thus, both government employees, whether operating state-wide or locally, as well as their contractors, remain equally beholden to the screening of drugs, as they may lose their federal funding.
Table Of Contents:
- Does an employer need to inform you about drug testing?
- Does a background check include a drug test?
- Drug Testing Laws
- Pre-Employment Drug Testing for Drugs and Alcohol
Most companies list this requirement within the job description. It would be prudent to expect every hiring situation to have a drug test. The labs' availability and cost of drug tests make it reasonably easy for any employer to screen drugs in potential employees.
It is, therefore, better to plan assuming every company would drug test you.
If the potential employee is a previous or current drug user, s/he needs to stay clean for 30–60 days so that s/he may safely qualify through the drug screening and bag the job.
Does an employer need to inform you about drug testing?
While the laws about pre-employment drug testing differ from state to state, most states let the employers test their applicants for drugs as long as they are compliant with the state regulations. Additionally, a few states require employers to provide written notice within the job postings regarding drug testing.
However, the employers need to meet some requirements to protect themselves against the complaints and claims of the workers and the currently unemployed. To give an example, there may be legal trouble based on whom the employer will be testing and how the test is conducted. Employers need to develop a robust pre-employment drug-testing program to avoid any potential lawsuits given below.
1. Claims of Discrimination:
If any employer singles out any particular group of employees (depending upon their race, gender, age, sexuality, etc.), s/he could face a discrimination lawsuit.
2. Claims of Discrimination Against Disability:
If an applicant/employee suffering from a disability protected by the Americans with Disabilities Act (ADA) takes any prescribed medication about that disability, it may appear on any drug test. To give an example, taking a legally prescribed opiate could make such a disabled person test positive for drug usage. If the company rescinds the job offer based upon such drug test results, it can be held liable.
3. Privacy Invasion:
Sometimes how a drug test may be conducted might violate the employees' privacy. To give an example, if the employees need to disrobe/provide a urine sample in front of others, this sparks privacy violation and subsequent lawsuit.
4. Defamation:
If any employer publicizes any false-positive result, the employee can claim for defamation. This is especially true for the employer acting in bad faith and knowing that such a result was incorrect.
Does a background check include a drug test?
More often than not, employers can choose to include drug testing as part of the hiring process, such as in the case of pre-employment drug testing. Some states require the employers to conduct the drug test only after extending the offer of employment towards the applicant.
However, the companies prefer to conduct the tests before any offer of employment. Why is that? If any job applicant tests positive for drug use after any conditional employment offer, the employer can withdraw the job offer. The candidate will ask to know the reason. Then, if the test results prove to be false, the employer may face a civil lawsuit based upon wrongful employment denial.
Any employer wishing to test any potential employee after extending any job offer s/he must first ensure that the test results are accurate to avoid future legal liability.
Even if an employer may not be legally required to perform drug tests upon job applicants, s/he can choose to do the same for many reasons. Firstly, by selecting not to hire applicants who are drug users, a company may protect productivity levels, improve safety, and save money. Additionally, drug testing may help employers avoid legal liability since a lawsuit may happen if any intoxicated employee causes an injury/accident.
Finally, many employers may choose to screen the applicants for drug usage to qualify for compensation discounts. This is because a few states reward the employers' initiatives towards maintaining a drug-free workplace.
Companies from safety-sensitive industries need to test all of their job applicants regarding both alcohol and drug usage. Industries requiring drug testing include construction, transportation, sports, safety, transit, defense, and aviation.
Other industries often requiring drug testing for their employees are schools, hospitals, and universities. Applicants/employees from the state, federal, and county may very well be required to submit drug test reports.
Drug Testing Laws
Laws about subjecting employees to drug testing can vary from state to state. Some states have imposed limits as to when and how the drug-screening program may be conducted.
To give an example, as per the ACLU, the state of North Carolina allows all public/private employers to test their applicants/employees without restriction. However, the testing needs to be conducted by any pre-approved laboratory.
However, in Ohio, the applicants may only be tested if they provide them with advanced notice. This can happen only after the offer of employment has been made. Employees can only be tested if they have been hired recently or have a reasonable suspicion of drug abuse. Employees may also be tested after an accident or as part of the follow-up program after participating in any particular treatment procedure.
Pre-Employment Drug Testing for Drugs and Alcohol
Wherever the state laws permit it, the job applicants may be screened for drug use as part of the employer's hiring process. If any company requires the applicants/employees to be tested for drug use, it is generally during the pre-employment screening process. The results are required after the employer has made the job offer. Failing the drug test might result in the withdrawal of the job offer.
If a potential employee is taking any prescription medication, it is always a good idea to check up on which particular substance(s) the employer will be screening for. It is always better to disclose the medications being used way ahead of time than outright fail at the drug test without reasonable explanation.
Employers can make exceptions for the employees who are currently on temporary medication or monitored by any physician for any chronic condition. If the medications can create any dangerous situation, whether for the employee taking it or for the co-workers, s/he should know about the perils in advance. Failing a drug test might result in an awkward situation.