PROSPECTIVE AND CURRENT EMPLOYEES
An employer may request samples of urine, saliva, or breath—nothing else. Blood samples may be tested only when an employee is being treated by a healthcare professional following a workplace accident, so long as the employer did not suggest or encourage the test. All samples must be collected under sanitary conditions and with respect for your privacy. For example, employers can’t watch you produce a urine sample unless they have reasonable suspicion to believe you’re going to alter or substitute the specimen.
The employer must allow you to provide information about prescription or nonprescription drugs you have recently used, along with any other relevant medical information. The employer has to give you a list of the drugs it’s going to test for.
If the initial test is positive, the employer must confirm the results by having the lab test it again. The employer may suspend you pending the confirmation test, but can’t fire you or refuse to hire you until it obtains a confirmed positive result.
Any test results should normally remain confidential.
Employers may conduct random, reasonable suspicion, or post-accident drug and alcohol testing of current employees so long as the testing and any subsequent action (suspension/discipline/firing) is carried out pursuant to the employer’s written policy and complies with the law. Employers must provide current employees with a copy of their drug/alcohol testing policy.
“Random” drug testing occurs when an employer requires a portion of its workforce to undergo unannounced drug testing. The selection of employees must be done by a company other than the employer, and selection must be generated by a random number generator on a computer. The employer cannot pick and choose which employees to include in the “random” test.
When an employer has a confirmed positive result for a current employee, it must notify the employee, in writing, by certified mail, of the results of the test and the employee’s right to request a second confirmatory test within seven days. The worker gets to choose the lab that will conduct the second test and must pay the fee of the test in advance, but if the second confirmatory test is negative, the employer has to reimburse the worker for the cost of the second test.
An employer may take disciplinary action against an employee once it receives a confirmed positive result, but the disciplinary action must be uniform and must be set forth in its written policy. The disciplinary action may only be based on the result of the test—no other factor can be considered.
If you think you were improperly subjected to a drug or alcohol test, or that your test didn’t follow the law, you should consult a lawyer of your choice.
Drug and alcohol testing may only be conducted within the terms of a written policy, and a copy of that policy must be available for people who are applying for jobs.
When an employer has a confirmed positive result for a prospective employee, it must notify the prospective employee, in writing, of the results of the test; the name and address of the medical review officer who analyzed the results; and the prospective employee’s right to request medical records. If you were denied employment because of a drug test, but were never given written notice of the results of the test or your right to request records related to the test, you should call an attorney.
TREATMENT/EMPLOYEE ASSISTANCE PROGRAMS
Employers that engage in drug testing are required to have an “awareness program” to inform employees of the dangers of drug and alcohol use in the workplace. They must either provide an Employee Assistance Program or maintain a resource file of alcohol and drug abuse programs. In certain circumstances, an employee that tests positive for alcohol must be provided the opportunity to attend rehabilitation, and the employer may be required to pay for a portion of that rehabilitation.