When Do Employers Have a Legal Right to Drug Test Their Employees?

Federal, state and local laws determine when an employer can drug test and how those tests must be conducted. In the United States, most states closely follow the guidelines published by the United States Health and Human Services. They usually only test for amphetamines, cannabinoids, cocaine, opiates, and phencyclidine using a lab specifically approved for drug testing. Here are some common times that employers may choose to drug test.


Pre-Employment

Many employers choose to drug test before allowing an employee to start working for their organization. The applicant must have a proper awareness or foreknowledge that they must pass a drug test to work there. The person looking for work must also know that the job is guaranteed if they pass the drug test. All applicants must be tested in the same way, like submitting a strand of hair for testing, at a state-approved lab. It’s not fair or equal for one person to submit a strand of hair, for another to get a cheek swab, and for the last one to need to submit urine.


Random

Random drug tests are a condition of employment at many companies. A treatment plan should be put in place before random drug tests begin in case someone fails or admits to having a problem with drugs or alcohol. A drug test can happen after an employee slips and falls. This could impact a personal injury case if the injured employee is found to be under the influence. Employers have the right to test at any time." The random nature of these drug tests makes them fair to everyone, and they can work as a great deterrent as employees never know when they might get tested.


Reasonable Suspicion

These can sometimes be the most challenging for the employer if the employee wants to cause a problem. Basically, the employer's supervisor or another employee must see the drugs. Patterns of unusual or erratic behavior can also be used to request a drug test. An inability to do routine tasks can sometimes be enough to run a drug test. Make sure to keep careful records about why you are suspicious.


Return-to-Duty

These drug tests should usually only be performed upon the recommendation of a substance abuse professional after a person has completed any recommended treatment — for example, this kind of drug test could be performed after an employee tested positive for opiates at work and then took time off work for suboxone treatment and behavioral therapy. A Return-to-Duty test may also be conducted after the employee has been found guilty of breaking an alcohol or substance abuse policy. Finally, they may be conducted after an employee has refused to take a test at some point in the past.


Using a qualified lab and following established procedures allows you to stay within the confines of the law. Remember that many employees come back after receiving treatment to make good employees in the future.


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