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Employment discrimination
Hiring and employment
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Attorney directory
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Employees’ Rights on Drug Testing
Drug free workplace testing, employer drug testing, drug testing urine samples
1. Is it legal for an employer to demand an employee to submit
to drug testing?
Yes it is. All employees, whether working for the federal or state government
or the private sector can be required to undergo drug testing.
A lot of federal employees assigned to sensitive jobs like handling of
confidential information, employees involved with national security, those
enforcing the law and those involved in securing life, property, safety
and health, including the President of the United States are required
to submit to drug checks. The Supreme Court agrees that submitting to
drug check to a large extent violates an individual’s privacy. However,
with the prevalence of drug use it becomes a necessity to secure the health
and wellbeing of other people.
Majority of the state laws run parallel to federal laws which support
the legitimacy of drug checks for employees of the state. There are some
states like California which require drug testing for new employees; however,
for existing employees there must first be a reason to subject the employee
to drug check.
A lot of private employers now compel their employees to submit themselves
to drug checks. There are federal and state laws established to safeguard
private employees’ right to their privacy. However, employers may also
have viable reasons to enforce this such as preclusion of unlawful activities
within the company that is connected to drug abuse and to protect other
employees’ health and well being.
2. The employee has a pending job application with a company but
the prospective employer is requiring the applicant to get tested for
drugs first. Is this not illegal?
Absolutely not. Generally, if the employer requires an applicant to be
tested for drugs regardless if there is no evident cause that the applicant
is a drug user, then the applicant should comply. However, drug testing
for new employees should be a standing policy of the company and not just
being asked from a specific applicant as a special case.
4. There is a standing company policy that employees who are being suspected
of using drugs with veritable basis can be tested for drugs. Is this authorized
by law?
Yes, it is. If new employees can be required to have a drug check, the
same rule applies to current employees. However, there should be enough
reason to believe that the employee is using drugs before this can be
implemented.
4. How can the employer establish “reasonable suspicion” to legally require
an employee to undergo drug test?
If the employer has enough “proof” as shown by the employees’ behavior
or demeanor and other observable, logical facts, then the employer can
require drug testing because it is not just based on conjecture or discrimination
against the employee. Some of the observable facts that will confirm suspicion
would be:
• Actual witnessing of the physical signs of drug abuse such as indistinct
speech, lack of coordination in body movement, among others
• Display of deviant or strange behavior
• Based on the account of a dependable witness that the employee is taking
illegal drugs
• Proof that the employee has altered the results of the drug test
5. Is it legal for an employer to indiscriminately test an employee
for drugs if he/she does not have reasonable suspicion?
It is contingent upon various factors. Majority of the states call for
a reasonable cause before an employee can be subjected to a drug check
and doing otherwise can be a cause for a legal action on the part of the
employee.
However, other states such as Vermont, Connecticut, Minnesona, Rhode Island,
Montana, Maine and Iowa, among others, allow arbitrary drug testing on
employees regardless of reasonable suspicion provided that notice is given
in advance. By and large, the law also favors random testing of existing
employees most especially when the jobs involve protection of human health
and wellbeing and property.
6. An employee figured in an accident; presently the employer is requiring
him/her to submit himself/herself to a drug check. Is this legal?
It is legal because Federal law allows testing of employees for use of
illegal drugs to facilitate the investigation of an accident. Not all
state laws are the same in this but majority of the states favors drug
testing of employees subsequent to an accident in the workplace.
7. An employee is already undergoing rehabilitation and counselling program
for using illegal drugs under the Employment Assistance Program, is it
legal for the employer to require him/her to still undergo drug check?
Yes, the employer is allowed by law to require testing while still in
the program to make certain that he/she is meeting the terms of the program.
8. What are the methods of drug testing?
The most common method of drug testing is through the urine sample. However,
breath and blood can also be used. It was discovered recently that using
the hair is also effective because drug traces stay longer in the hair
compared to blood or urine.
9. To confirm that the urine used for drug testing is really the
employee’s, the employer requires a witness during extraction of the specimen,
is this legal?
In general, it is not because some courts agree that this is a gross incursion
of one’s privacy. To remedy this, a number of courts have allowed taking
some measures to guarantee the veracity of the urine sample like listening
outside while the subject is urinating, wearing of hospital gowns during
the extraction of urine sample, getting the urine’s temperature and dying
of the water in the toilet.
10. If the employees tested positive for drug use, what are the
legal options of the employer?
Policies on drug use vary among state and private employers, some of which
are dismissal, compulsory rehabilitation or if just an applicant, being
scrapped from the list of candidates for the position. Some benevolent
employers allow some time off for rehabilitation to give the employee
a second chance. However, this is not really mandatory and employers can
dismiss an employee outright if found using drugs.
11. An employee was proven to be a marijuana user and so does
others. But a particular employee was singled out for dismissal while
others were not. Can this employee make a case out of this?
There is no law that requires employers to deal with all their employees
equitably and justly. However, if a policy is not applied to all erring
employees, then the dismissed employe might have a ground for filing a
complaint for discrimination. The employee should be guided by the labor
laws of the state and find out if he/she has grounds to sue the employer
for discrimination. If the employee is a union member, a complaint may
be filed through the grievance committee.
12. An employee’s drug test showed positive but the employee is
100 per cent sure that he/she does not use drugs thus knowing that the
result of the test was inaccurate. Can the employee contest the results
of the test?
The employee’s next step will depend on what laws are enforced in the
state. If the employee is a union member, again, there is the grievance
committee where he/she can file the complaint for unfair dismissal due
to inaccurate drug test. The employee can go to the department of labor
and consult a labor attorney as well to find out more about his/her case
or employ the services of a private lawyer.
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