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Drug Tests

Many employers require employees to undergo drug testing in a variety of circumstances. Tests are given prior to hiring, for verification as directed by a substance abuse professional, under reasonable suspicion of drug use, after on-the-job accidents, and at random times. In random drug testing, a specified percentage of the workforce is selected for periodic drug testing without prior notice and without individualized suspicion of drug use. If proper procedures are used, a drug test can determine with reasonable certainty whether specified illegal substances are in a person’s system. The legal rights of employees vary considerably according to whether they work for the government, are unionized, or live in a state that has chosen to regulate drug testing. Approximately half of all states have laws that deal with drug testing. Some of these laws require drug testing of certain types of employees or under certain circumstances, and no state prohibits all drug testing of employees. Laws in approximately ten states prohibit random testing outright or limit it to the occupants of safety-sensitive jobs. Employers should be especially careful in deciding whether to use random drug testing. When employees are represented by a labor union, employers are generally required under the National Labor Relations Act to negotiate with the union about whether there will be drug testing and what any such program will entail. Public employees challenging the drug-testing programs of public employers have argued that it is unconstitutional because it violates the Fourth Amendment, which protects against unreasonable search and seizure. The Supreme Court has consistently held that drug testing, in which employees are required to submit fluids and have them analyzed for the presence of illegal substances, constitutes a “search.” Drug testing precipitated by an employer’s observations of aberrant behavior is certainly reasonable and constitutional.