Opinions greatly vary regarding both the use of drugs and alcohol and its testing. But whatever your view, it is clear that there are certain limitations on your employer’s ability to drug test you and the procedures he/she may use.
It is vital to get informed and know your rights as an employee or potential employee. Here’s a section of my book “The Employee Rights Handbook” that deals with just that! Read now!
Drug and Alcohol Testing
The fight against drug and alcohol abuse in the workplace often results in drug tests of employees. There has been a sharp rise in employer interest in drug and alcohol testing, fueled in part by high-profile drug deaths and publicity surrounding the marketing of drug tests. More employers are resorting to such tests, especially pre-employment testing, to identify drug users and reduce the incidence of on-the-job accidents and absences.
Critics argue that indiscriminate testing violates employees’ rights of privacy, due process, and freedom from unreasonable search and seizure, and that test results are often incorrect, unreliable, or disseminated to nonessential third parties. Proponents of testing cite its success (e.g., the military’s program has dramatically lowered drug use in the armed forces) and the growing confidence in the reliability of current testing methods.
Generally, since private employers are not held to the same constitutional standards as local, state, and federal government employers, private employers may implement and conduct drug and alcohol tests provided certain procedural safeguards are followed to minimize potential offensiveness. This typically includes:
- Adopting a comprehensive testing policy and putting it in writing
- Periodically reminding employees of the stated drug or alcohol testing policy
- Reducing the incidence of errors
- Treating test results carefully (i.e., confidentially) to avoid improper dissemination
- Following local, state, and federal laws and decisions in this area.
Despite the general legitimacy of such tests, some state and local governments have passed laws prohibiting the testing of employees for drugs or alcohol.
State law varies dramatically. Some states permit employee testing with required procedural safeguards to ensure that the testing is done in a reasonable and reliable manner with concern for an employee’s rights of privacy. Other states only permit individual tests where a particular employee is suspected of being under the influence of drugs or alcohol and his impaired state adversely affects job performance. Case decisions in other states prohibit employee testing in positions that are not safety or security-sensitive as a matter of public policy, particularly programs involving a large number of employees where there is no suspicion of individual wrongdoing.
Since the law differs so dramatically from state to state, is constantly changing, and may be even more stringent than the requirements of the ADA, it is critical that you obtain advice from counsel.
If you work for a private employer and are not a member of a union, what concerns should you have when advised that the employer intends to test you for drugs and alcohol?
First, if the employer has decided to test, you may be entitled to advance notification in work rules, policy manuals, and employment contracts to reduce perceived privacy rights in this area. If no such notice was received before the test was administered, you could have a valid claim that your privacy rights were violated, especially when there was no rational reason for asking you to submit to the test (e.g., you were randomly selected) and you were requested to take the test without warning.
Second, even if your privacy rights are not violated, all tests must be administered in a consistent, evenhanded manner. For example, if you are black or a woman, and employees belonging to your classification of race or gender are being tested and fired as a result of such tests in far greater numbers than other classifications, a charge of race or sex discrimination might be valid under certain circumstances.
Third, test results must be treated in the same manner as other confidential personnel information. Unwarranted disclosure of this information (even within your company) when made with reckless disregard for the truthfulness of the disclosure, or excessive publication, can allow you to sue for damages.
Additionally, a firing based on a positive test finding that later proves inaccurate could lead to a multitude of legal causes of action, including wrongful discharge, slander, and invasion of privacy. Thus, if the employer fails to hire a reputable testing company or the test’s results are inaccurate, you can challenge the test on this basis; be aware that six-figure verdicts are sometimes awarded for violations in this area.
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