Drug testing has become a common part of employment.[1] There are many states that regulate drug testing. Typically, most states’ laws permit employers to test applicants for drugs. However, the employer must comply with the state’s rules on notice and procedures to prevent discrimination and inaccurate samples.[2]
When it comes to testing private company employees, most states restrict testing for drug usage in some way. In some states, companies can’t conduct broad drug testing of all employees or random drug tests—testing must be focused on a specific individual, and there must be sound rationale by the employer to believe that person is using drugs[3] or because his or her position has a high risk of injury or damage if performed by a person taking drugs.[4] Courts have generally held that companies are permitted to test employees after an accident that could have been caused by drug use or one in which employee appeared to be impaired.[5] Very few states, however, put restrictions on an employer’s actions and decisions based on drug test results.[6]
Drug Testing in Specific States
California is somewhat unique in that it’s one of just a few states with a state Constitution that includes a right to privacy.[7] This right of privacy extends to private industry employees.[8] The constitutionality of drug testing is determined on a case-by-case basis.[9] In addition, California also has a “compassionate use” law for medical marijuana.[10] The laws of California do not provide specific drug testing procedures. As a result, courts apply a balancing test to drug tests, and employers have a greater chance of success if they create a lessened expectation of privacy for employees.[11]
In contrast, New York does not have a law concerning drug testing in private employment. As such, drug testing is not prohibited or restricted, provided it does not violate other statutes.[12] And under Texas law, there’s virtually no limitation on the right of private employers to adopt drug testing policies for their workers.[13] Texas employees who contend that their drug test was illegal must bring alternative causes of action.[14]
Florida has a drug-free workplace program that regulates employment drug testing. The Drug-Free Workplace Act[15] provides that employers who create this type of program can qualify for a discount on their workers’ compensation insurance premiums.[16] However, there are specific guidelines that employers must follow to qualify for the discount.
Summary
It’s not unusual for employers to require employees to submit to drug testing before and after being hired. Employers should understand the specific rules for drug testing of applicants and employees in their specific state.
[1] See Stacy Hickox, It’s Time to Rein in Employer Drug Testing, 11 Harv. L. & Pol’y Rev. 419 (Summer 2017) (“Drug testing by employers has become so common that few question its effect on privacy.”). [2] See ACLU, State-by-State Workplace Drug Testing Laws. Retrieved at https://www.aclu.org/other/state-state-workplace-drug-testing-laws. [3] See e.g., Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 617 (1989) (“the process of collecting the sample to be tested . . . implicates privacy interests.”); In re Claim of Ramsey, 17 A.D.3d 949, 949, 793 N.Y.S.2d 632, 633 (N.Y. App. Div. 2005) (employer’s request that employee submit to a drug test was reasonable as employer had a reasonable belief that employee was under the influence of drugs during his shift). [4] See Am. Fed’n of Teachers-W. Va. v. Kanawha Cty. Bd. of Educ., 592 F. Supp. 2d. 883, 902-03 (S.D. W. Va. 2009) (quoting Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 628, 109 S. Ct. 1402, 1419 (1989) (“Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.”) [5] See generally, Kenneth M. Willner, Drug and Alcohol Testing in the Workplace, CY016 ALI-ABA 767 (April 1, 2017). [6] Research by SHRM (Society for Human Resource Management) commissioned by the Drug and Alcohol Testing Association (DATIA) in 2011 found that employers most often test current employees based on reasonable suspicion of impairment at work (35%), as a follow up to rehabilitation (20%), and employees indicating a possible substance abuse problem (8%). Drug Testing Efficacy SHRM Poll, SOC’Y FOR HUMAN RES. MGMT. (Sept. 7, 2011) . [7] Cal. Const., Art I, Sec. 1. Retrieved at https://law.justia.com/constitution/california/article-i/section-1/. [8] See California Attorney General website, Privacy Laws (2018). Retrieved at https://oag.ca.gov/privacy/privacy-laws. [9] Smith v. Fresno Irrigation Dist., 72 Cal. App. 4th 147, 166, 84 Cal. Rptr. 2d 775, 788 (1999) (employer’s interest in minimizing the risk of injury to its employees outweighs the plaintiff’s privacy interests). [10] Ross v. RagingWire Telecommunications, Inc. 42 Cal.4th 920, 70 Cal. Rptr. 3d 382, 174 P.3d 200 (Cal. 2008) (employee who used medical marijuana with a physician’s recommendation under the MCRSA and was fired after failing a preemployment drug test could not state a cause of action for termination in violation of public policy). See also Cty. of Butte v. Superior Court, 175 Cal. App. 4th 729, 739, 96 Cal. Rptr. 3d 421, 428 (2009). Legislation effective in 2016, the Medical Cannabis Regulation and Safety Act (MCRSA), permits state residents to use marijuana for medical purposes. The law states that a patient with a valid prescription cannot be prosecuted under state law for crimes relating to the use, possession, or cultivation of a certain amount of marijuana. But the California Supreme Court has held that an employer may not hire an applicant who tests positive for marijuana, even if the drug is legally prescribed for a disability. [11] For example, the adoption of a written company policy providing the circumstances in which drug testing will be required. See Semore v. Pool, 217 Cal. App. 3d 1087, 1096, 266 Cal. Rptr. 280, 285 (1990) (“While an employee sacrifices some privacy rights when he enters the workplace, the employee’s privacy expectations must be balanced against the employer’s interests.”). But see Luck v. S. Pac. Transp. Co., 218 Cal. App. 3d 1, 15, 267 Cal. Rptr. 618, 625-26 (1990) (“…the collection and testing of urine intrudes upon reasonable expectations of privacy. This finding is consistent with that of the United States Supreme Court, which held that both the collection of a urine sample and its testing involve privacy interests and therefore constitute searches within the meaning of the Fourth Amendment.”) (citations omitted). [12] See e.g., Matter of Scazafavo v. Erie Cty. Water Auth., 2006 NY Slip Op 4592, ¶ 1, 30 A.D.3d 1034, 1034, 816 N.Y.S.2d 642, 643 (App. Div.) (termination was not so disproportionate to the offense as to be shocking to one’s sense of fairness where the employee was selected for a random drug test and refused to comply with an order to stay in the vicinity of one of the employer’s vehicles so that he could be transported to the hospital for drug testing). [13] Texas Workforce Commission, Especially for Texas Employers: Drug Testing in the Workplace. Retrieved at https://www.twc.state.tx.us/news/efte/drug_testing_in_the_workplace.html. See Willis v. Pilgrim’s Pride Corp., No. 9:14-CV-71, 2016 U.S. Dist. LEXIS 168951, at *12 (E.D. Tex. Dec. 7, 2016) (Plaintiff admitted that she terminated her employment immediately after refusing to take the mandatory drug test.); Higgins v. Lufkin Indus., No. 9-13-CV-203, 2014 U.S. Dist. LEXIS 187243, at *7 (E.D. Tex. Nov. 18, 2014) (employees who refuse to consent to a drug test are subject to immediate termination). [14] See e.g., Loiacano v. DISA Glob. Sols., Inc., 659 F. App’x 772, 773 (5th Cir. 2016) (negligence action arising from a failed drug test dismissed). [15] Fla. Stat. § 112.0455, et. seq. [16] State of Florida, Division of Workers’ Compensation, An Employer’s Guide to a Drug-Free Workplace (Revised April 2005), at 4. Retrieved at https://www.myfloridacfo.com/division/wc/pdf/DFWPman.pdf.
