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Employee Privacy Right-Drug Testing

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.

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