Although employers may have the right to ask job
applicants to submit to
drug testing, the law
restricts employers’ rights to drug test their
current employees.
Drug testing is not required under the Drug-Free
Workplace Act of 1988. The majority of employers across
the United States are not required to test, and many
state and local governments have statutes that limit
or prohibit workplace testing, unless required by
state or federal regulations for certain jobs. On
the other hand, most private employers have the right
to test for a wide variety of substances.
During the hiring process in the private sector,
the law generally permits non-union companies to take
drug tests of the applicant. Under certain circumstances,
employers may ask the employee to take a drug test.
For unionized employees, the drug testing program
is usually negotiable.
Even when testing is required by federal regulations,
the disciplinary consequences of testing positive
need to be determined and are subject to collective
bargaining.
Random drug testing is permitted in some industries,
including the transportation industry. Similarly,
employees engaged in safety- sensitive or security-sensitive
jobs (nuclear reactor workers, refinery workers, peace
officers, and customs agents, for example) may be
subjected to random testing.
If the employee’s state has laws protecting
right to privacy, he/she might refuse a drug
test, though under very limited conditions. But employers
often have the right to test employees for drugs and
alcohol, especially if the job is "safety sensitive.”
While at work, the employer may ask the employee
to undergo a urine test, to check if the employee
is under any kind of drug influence at that
time. The employee can refuse, if his/her state laws
protect the right to privacy in this regard.
