Drug tests are used to detect the presence of illegal or prescription drugs.[1] Employers may require job applicants and employees to submit to drug testing either during the hiring process or after being hired. There are several reasons to test, the most common reasons include: pre-employment, random, reasonable suspicion/for-cause, and post-accident drug testing. Unique to post-substance use and abuse treatment programs, employers may test before an employee returns to duty and as part of a follow-up program overseen by a substance abuse professional.
Drug testing laws vary from state to state, so employers must be diligent in efforts to ensure compliance with applicable state and/or federal laws.
The United States Department of Transportation (“DOT”) drug and alcohol testing regulations do not address who is responsible for paying for drug or alcohol testing in most circumstances.[2] The employer and the employee can bargain and agree as to which party is to pay for the drug or alcohol test.[3] However, when a split specimen test is requested, an employer must order the test, likely at its own expense, and then seek payment or reimbursement from the employee if the employee was responsible for paying for the test.[4] However, the employer must still make sure that the test is conducted as requested regardless of whether the employee pays for the test or not.[5]
Drug and alcohol testing programs not subject to federal regulations like the DOT are subject to the applicable state law. There is no uniform drug and alcohol testing law across the United States and thus the rules vary from state to state, making compliance challenging. For example, in the State of Florida, an employer who has adopted the state’s voluntary drug-free workplace program for workers’ compensation insurance premium discounts is required to cover the cost of all employee drug tests required by the employer.[6] The statute covers both initial and confirmation drug tests required by the employer.[7] In Florida, an employee or job applicant is only required to pay for any additional drug tests that are not required by the employer if the employer is participating in the voluntary drug-free workplace program.[8] However, an employer may choose to implement a drug-free workplace program and not opt-in to the voluntary program; in so doing, the employer would not be subject to the aforementioned requirements. Under a similar voluntary program in Georgia, an employer is required to pay “the cost of all drug tests, initial and confirmation, which the employer requires of employees.”[9] The employee or job applicant is required to pay for any test that is not required by the employer.[10]
The State of North Carolina makes employers responsible for the initial costs of all drug testing.[11] The North Carolina Administrative Code provides that “[t]he examiner shall pay expenses related to all controlled substance examination except examinee-requested retest.”[12] Therefore, under North Carolina law, the employer cannot make the employee or applicant pay for a drug test unless it involves a retest requested by the employee, just like Georgia and Florida.[13] The law does not seem to distinguish between pre-employment drug tests and random drug tests. Thus, an employer is likely responsible for the costs of drug testing whether the individual is a current employee or a prospective employee. Like the State of North Carolina, Maryland allows employers to require employees to submit to drug tests and all expenses should also be assumed by the employer.[14] Under Maryland law, a person is required to pay for any independent test conducted for the purpose of verification.[15] However, Texas law leaves it up to the employer to determine who should bear the cost of pre-employment testing.[16] The Texas Workforce Commission cautions employers who shift that burden to be cognizant of other indirect impacts which may lead to concerns with the Equal Employment Opportunity Commission (EEOC) and the United States Department of Labor.[17]
Employers who are considering whether to charge their employees for a drug or alcohol test must first determine whether the test is federally regulated or regulated by state law. DOT regulations, for example, leave that to the employer and, if applicable, collective bargaining. If regulated under state law, is the program subject to the strict requirements of a voluntary drug-free workplace policy, subject to no state regulation, or some state regulation? In addition, even if the law allows an employer to place the burden of the test on the employee, if its implementation creates a noticeable negative impact on protected classes, the EEOC and the Department of Labor may act to prohibit it. Any such change to a policy should be made in consultation with an experienced employment law attorney.
References:
[1] Drug Testing, MedlinePlus, https://medlineplus.gov/lab-tests/drug-testing/ (last visited Aug. 17, 2020). [2] Frequently Asked Questions, U.S. Dep’t Transp., https://www.transportation.gov/odapc/faq#Who-pays-for-the-DOT-drug-or-alcohol-test-or-SAP-recommended-treatment-education-the-employer-or-employee (last visited Aug. 16, 2020); but see, 49 CFR § 40.173 (2020) (indicating that an employer must order a split specimen test once an employee requests it, even if that means the employer pays for it and, if the employee was responsible for payment, the employer would need to seek reimbursement from the employee). [3] Id. [4] See, 49 C.F.R. § 40.173. [5] Id. [6] Fla. Stat. Ann. § 440.102(5)(m) (2020). [7] Id. [8] Id.(this may come into play when an employee tests positive on a confirmation test, but wishes to have the sample sent to another laboratory for re-testing to attempt to establish that the result was erroneous). [9] O.C.G.A. § 34-9-415(d)(10) (2020). [10] O.C.G.A. § 34-9-415(d)(11). [11] See 13 N.C. Admin. Code 20.0601 (2020). [12] Id. [13] Id. [14] Drug Testing – The Maryland Guide to Wage Payment and Employment Standards, Md. Dep’t Labor, https://www.dllr.state.md.us/labor/wagepay/wpdrugtest.shtml (last visited Aug. 17, 2020). [15] Md. HEALTH-GENERAL Code Ann. § 17-214(e)(2020). [16] See, e.g., Texas Workforce Commission, “Drug Testing in the Workplace” https://www.twc.texas.gov/news/efte/drug_testing_in_the_workplace.html (last accessed Oct. 3, 2020) (providing that, “[p]re-employment drug testing is something that some employers choose to do for applicants. It is not regarded under the ADA as a medical examination, so it may be done at any point of the selection process, but due to cost issues, most companies restrict such testing to the final candidates for a position. Regarding the issue of who pays for the test, most companies assume that burden. Texas and federal law do not have specific provisions one way or the other, but if requiring an applicant to pay for a pre-employment drug test would have the effect of discouraging minority applicants, or else effectively result in less than minimum wage for the employee’s first paycheck, EEOC and/or the U.S. Department of Labor may have concerns under EEO or minimum wage laws. It would be best to let doubtful cases be reviewed by employment law counsel prior to such testing. Even though drug tests themselves are not covered by the ADA, the results from such tests are considered medical records and should be kept in a separate, confidential medical file just as other types of medical records must be maintained under the ADA”). [17] Id.
