Whether you’re an employer hiring new workers or an applicant seeking a job, you might wonder how pre-employment drug testing laws will affect your search. The federal government heavily regulates some safety-sensitive industries, like transportation, nuclear energy, and military contracting, and requires pre-employment drug testing in certain circumstances. Beyond this, state governments are largely in control.
Pre-Employment Drug Testing Laws
Pre-employment drug testing laws differ by state, but most states allow employers to test applicants for drugs so long as they comply with the state’s regulations. In addition, some states require that employers provide written notice that drug testing will occur in job postings. To check the legal status of a specific state, please check this State-by-State Legal Status Guide.
Unlike most states, Missouri does not have a drug testing statute. The state does not prohibit or restrict drug testing. However, employers must meet certain requirements in order to protect themselves against workers’ and unemployment comp claims. For example, legal trouble can arise based on who the employer tests and how the employer conducts the test. Employers must develop their pre-employment drug testing program carefully to avoid potential lawsuits, like the following:
- Discrimination Claims: If an employer singles out a certain group of employees (based on race, age, gender, sexuality, etc.), they could face a discrimination lawsuit.
- Disability Discrimination Claims: If an applicant or employee suffering from a disability protected by the Americans with Disabilities Act (ADA) takes a prescribed medication for that disability, it could appear on a drug test. For example, if an applicant takes a legally prescribed opiate for a disability, they could test positive for drug use. If a company rescinds a job offer based on such a drug test, it may be held liable for discrimination.
- Invasion of Privacy: Sometimes the way a drug test is conducted can violate employees’ privacy. For example, if employees are required to disrobe or provide a urine sample in front of other people, this could violate their privacy and spark a lawsuit.
- Defamation: If an employer publicizes a false-positive result, an employee may claim defamation if the employer acts in bad faith and knew (or ought to have known) that the result was incorrect.
The Supreme Court
In March of 1989, the U.S. Supreme Court made two decisions to uphold drug testing programs: (1) the Federal Railway Administration’s testing of entire train crews following certain accidents and incidents and (2) the U.S. Custom Service’s testing of current employees who applied for promotions into certain positions. The broad language of the decision made a big impact, essentially authorizing government organizations to conduct drug testing without suspicion.
When using a urine specimen in a drug test, the Court maintained that the test must comply with the Fourth Amendment’s forbiddance of unreasonable search and seizure. However, the majority agreed that “neither a warrant, nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” In addition, the majority stated that the government could conduct drug tests on employees without suspicion if the government can demonstrate “special needs” (source). This need must be significant, because it must override the individual’s right to privacy.
When Employers Test Applicants for Drug Use
Employers often choose to include a drug test as a part of their hiring process (i.e., pre-employment drug testing). In some states, employers may only conduct a drug test after they have extended an offer of employment to the applicant. However, companies may prefer to conduct the drug test prior to an offer of employment. Why? If a job applicant tests positive for drug use after a conditional offer of employment, the employer will withdraw the job offer and the candidate may ask to know why. Then, if the drug test proves false, the employer could face a civil suit based on wrongful denial of employment. If an employer wishes to test a potential employee after extending a job offer, he or she must ensure that the information is accurate to avoid legal liability.
Even if an employer is not legally required to drug test job applicants, he or she may choose to do so for a variety of reasons. First, by choosing not to hire applicants who use drugs, a company can protect its productivity levels, save money, and improve safety. In addition, drug testing can help an employer avoid legal liability, as a lawsuit may arise if an intoxicated employee causes an accident or injury. Finally, some employers choose to screen applicants for drug use to qualify for workers’ compensation discounts (some states reward employers’ initiatives to maintain drug-free workplaces).
Although most employers are not required to conduct pre-employment drug testing by law, companies in safety-sensitive industries may be required to test all job applicants for both drug and alcohol use. Industries that require drug testing include transportation, construction, and sports.
How to Get Started
If you’re looking to implement a drug-free workplace through pre-employment or random drug and alcohol testing, contact Tomo Drug Testing. Based in Springfield (MO), St. Louis (MO), Kansas City (MO), Indianapolis (IN), and Evansville (IN), we offer customized solutions to make drug testing simple, and our nationwide network of clinics and onsite providers allows Tomo to be available anytime, anywhere. We also provide education sessions for DOT employers and employees. For a free needs analysis or more information, give us a call today at 1-888-379-7697 or contact us online. We would be happy to help!