The Legal Implications of Pre-Employment Drug Testing

Conducting pre-employment drug tests on job applicants can help employers avoid hiring workers with substance abuse problems. It can also help prevent costly workers’ compensation claims in safety-sensitive industries.

Although a few states have restrictive legislative provisions and constitutional limits, courts generally have not interfered extensively with governmentally mandated or privately conducted workplace drug testing programs that comply with federal guidelines. Such programs are characterized by extensive procedural safeguards to ensure test accuracy and confidentiality.

Constitutional Issues

While the law on drug testing is still evolving, most courts have been reluctant to strike down employer policies unless they are arbitrary and discriminatory. A policy that results in a dismissal for no apparent cause is unlikely to pass constitutional muster, even if it is not applied consistently. In addition, employees have rights under the Americans with Disabilities Act and related state laws to receive reasonable accommodations for a medical condition that would result in a positive test result.

In general, the Supreme Court has found that a government employer’s drug testing program violates the Fourth Amendment if it is not based on probable cause or at least reasonable suspicion and instead relies on a desire to project an image of a drug-free workplace or economic efficiency. Despite these concerns, the Court has permitted testing programs in particular contexts.

A significant consideration is whether the employment offers a specific risk to the safety or integrity of others, such as bus drivers, nuclear power plant workers, and pilots. Moreover, a program may be considered constitutional where it involves visual monitoring of the collection of urine samples (such as at airports) and if a worker is always supervised in a room while submitting the sample. In some cases, the courts have also allowed a program to be justified by a claim that it will deter drug abuse and save on insurance costs.

Legal Issues

Many governmental and private employers conduct pre-employment drug tests in their hiring process. Some also require recurring tests of current employees on a predetermined schedule. Such programs generally run afoul of state and federal laws. In addition, local ordinances may restrict workplace drug testing. Moreover, for unionized employers in the public sector, any drug testing program must be subject to collective bargaining. 

Any such program should be based on solid nexuses between revealed drug use and likely job performance to avoid invading the privacy of those without reason to believe their drug use is related to their work. Changing technology and evolving perceptions of the relationship between drugs and workplace performance may also alter what legal constraints, if any, are placed on such programs.

Privacy Issues

Drug testing is usually conducted with background checks and prior employment verifications. The testing process may include a urine sample, a hair test, or blood work—the most common tests screen for marijuana, cocaine, opiates, amphetamines, and phencyclidine. In the case of regulated industries such as transportation, testing must meet DOT regulations.

For other employers, especially those in nonregulated industries, there needs to be more legal concern about balancing privacy interests against the government’s interest in conducting the test. Courts have generally accepted that a substantial nexus between revealed drug use and job performance is sufficient to justify testing.

In a notable exception, however, a federal circuit court ruled that the government cannot force a private employee to submit to a drug screening test because it does not have a substantial and identifiable public interest in doing so. The Court ruled that since railroad workers already consent to significant restrictions on their freedom of movement in the performance of their jobs, any additional intrusion into their privacy by a drug test would not be reasonable under the Fourth Amendment (IBEW v. Skinner, 913 F.2d 1454 (9th Cir. 1989)).

In this case, the decision demonstrates that the courts are willing to grant more privacy protection to certain employees over others, depending on the nature of their jobs and how necessary the test is for the safety or integrity of a regulated industry. Employers need to ensure that their screening processes are consistent with local law.

Administrative Issues

Besides the constitutional and privacy issues, employers must also consider how their drug testing policies will affect state laws. For example, some states prohibit an employee from being fired for refusing to submit to a drug test, while others have specific protections for individuals who use medical marijuana. As a result, an employer should consult with legal counsel to ensure that their drug testing policy is consistent with the law.

The emerging judicial consensus in favor of workplace drug testing appears to be based on the perception that drug abuse poses significant dangers to workers, their coworkers, and members of the public, as well as to the integrity and productivity of businesses. While several court decisions have mentioned concerns about the privacy implications of some drug screening programs, most have not given them great weight. This is because many state statutes impose strict limitations on what can be done with positive test results and on how the information can be used by employers, which makes them less likely to face significant judicial scrutiny.

Employers should ensure that their drug-testing practices follow local regulations and are consistently enforced. Additionally, they should regularly review their drug-testing policies to consider any changes in the law and any other factors that could impact the program’s effectiveness.