Does your employer have the right to test you for drug use?

Many U.S. employers require drug testing as part of their hiring process. Some companies even administer periodic random drug tests to their existing employees, especially as part of their workplace substance abuse programs.

Many government agencies also administer drug tests to their employees. Last month, Florida Governor Rick Scott signed a bill that allows random drug testing of state workers. The controversial new law is expected to be met with a lawsuit. As a result, Scott says most government workers will not face random drug testing until the legal matter is resolved.

“Many believe that when government workers are subjected to drug testing, it violates the U.S. Constitution’s ban on unreasonable searches and seizures,” said attorney Martin Sweet of legal information website CLEVELANDLAW.TV.

That search and seizure ban would not apply to private employers, and there are many reasons for a private employer to implement a drug testing program:

• Workers’ compensation discounts – Many states offer employers discounts on their workers’ compensation insurance premiums for taking steps to ensure a drug-free workplace.
• Avoiding legal liability – If an intoxicated employee harms someone on the job, the employer could be liable.
• Maintaining productivity – According to the federal government, drug and alcohol abuse costs U.S. employers $80 billion in lost productivity each year.

Typically, current employees have more rights when it comes to drug testing than job applicants because they stand to lose a job they already hold if the test comes back positive. Prospective employers can require an applicant to take a drug test as a condition of employment as long as they follow certain rules. In those cases, you will be disqualified from consideration if you refuse to take the test. But even job applicants have rights, and private employers could face several limitations:

• Privacy – Applicant privacy might be violated if the employer requires him to take a urine test or disrobe in front of someone else.
• Disability discrimination – If a disabled applicant is taking prescription medication that shows up on a drug test, he is protected by the Americans with Disabilities Act.
• Observance of state laws–Some states only allow an employer to administer a drug test once the job has been offered. Other states require employers to indicate in their job postings that drug testing will be required.

“Each state has its own laws concerning drug testing in the workplace, and they can vary quite a bit from state to state,” added Sweet.

If you have a question about the laws in your state, you should contact your state’s labor department. If you believe a prospective or current employer is in violation of those laws, it’s a good idea to get in touch with an experienced employment lawyer.