Does an Employer Have to Tell You about Drug Testing?
Employers receive very few regulations from federal law for drug testing in the workplace. Although federal law does heavily regulate certain industries, such as military contracting and transportation, private employers are basically left to their own devices. State law may offer some regulations, but for those states that don’t, employers are smart to set a company policy in place and stick to it.
In some cases, an employee may feel that an employer has violated his or her rights in some way relating to a drug test. To recognize whether or not the situation is a legal case, specific requirements must be met. Consult a lawyer if you think that your situation qualifies.
Common Practices for Employee Drug Testing
Many states (but not all) require that employers make job applicants aware that a drug test is a part of the application process. Applicants who don’t wish to submit to a drug test can drop out of the application process if they so desire. On top of that, employers should test all applicants and employees similarly. If an employer has company policy on drug testing, the employer must follow its own rules.
Pennsylvania Drug Testing Laws
Chances are that if you’re reading this post, you live in Pennsylvania. While other states have implemented laws on drug testing, Pennsylvania has not. In fact, Pennsylvania has no law addressing, prohibiting, or restricting drug testing in private employment. The only time employees might find legal protection in regards to drug testing is if the drug testing violates another law.
Private employers in Pennsylvania can create their own in-company rules for drug testing unless they fall into a category of industry that the federal government regulates. While federal agencies are obligated to follow the standards set forth by the Substance Abuse and Mental Health Services Administration (SAMHSA), private employers are not required to do so. However, in court decisions, it can be in the best interest of the private employer to follow these standards.
Optimal Times for Drug Tests
Employers often turn to drug tests during specific times of the employment relationship. While not every private employer is the same, these are a few common times that a drug test might be administered. Since Pennsylvania law does not lay out any regulations for employers, it’s important that employers are consistent in their practices.
Pre-Employment – a conditional job offer based on the results of a drug test
Reasonable Suspicion – symptoms or documented signs lead managers to suspect violation of workplace drug policy
Post-Accident – company objective criteria that leads to testing for drugs
Random – unannounced and unpredictable testing by using a computer-generated selection
Periodic – scheduled and systematically administered
Return-to-Duty – test taken to verify that an employee is clean after completing required treatment for substance abuse
Types of Drug Tests
Drugs and alcohol can be tested for in a variety of ways. Although most employers choose to test urine for drugs, any of the below can be used to test for drugs or alcohol.
Does an Employer Have to Tell You about Drug Testing?
Since Pennsylvania law doesn’t regulate drug testing and whether or not to communicate about drug tests, an employer must abide by their own policy. If it is their common practice to inform employees about a drug test, then they should do it for every employee. Employers should have clear standards within their workplace.
1. A written company policy on drug testing
Employers should have employees read and sign a copy of the drug-free workplace policy. This clears the air between employers and employees and specifically lays out workplace expectations.
2. Outline penalties
When an employee violates the company policy on drugs, they should already be aware of the penalties. Employers must have a system in place that treats each employee similarly according to their violation.
3. Protect privacy
Discussions about a possible policy violation should be held in private, not in front of other employees. Another manager should be present for the conversation as well to be a witness to the dialogue.
To protect the company and employees, employers are tasked to be consistent in their drug testing policy. No employee or group of employees should receive special treatment. When unfair treatment is revealed, this can lead to discrimination complaints.
When Can I Sue My Employer for Administering a Drug Test?
Without any Pennsylvania law on drug tests for employers, employees who believe that they’ve had their employee rights violated due to drug testing will need to rely on other laws to protect them. At this point, speak to a lawyer who will recognize whether your situation is eligible for legal protection from another law. Below are some examples:
Angela, diagnosed with severe depression, takes antidepressant medication to manage her symptoms of her disability. She applied for a secretarial position and disclosed her disability. As a part of the application process, she took a drug test and received a positive result. The company refused to hire her despite the fact that it was the medication for her disability that caused the positive result.
Other Types of Discrimination
Juan, originally from Puerto Rico, started a job in a shipping warehouse. His manager used slurs for Spanish speakers when calling for Juan. When drugs were found in the breakroom, Juan’s manager accused him and only Juan was given a drug test.
How a drug test is administered can be an invasion of privacy. A manager who demands employees to disrobe for a urine sample with other workers watching could be a privacy violation. This will depend on the circumstances surrounding the situation.
Publicizing a false positive result on a drug test for an employee that ruins that employee’s career and job prospects could be ground for a lawsuit, especially if the employer was aware that the result was incorrect.