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TT&S Weekly

TT&S Weekly (3/4/19)

Topic of the Week  Drug Testing in the Workplace: What You Need to Know

  • Can I be fired for taking prescription medication under doctor's orders if it shows up on a drug test?
  • I'm applying for a job, and my employer wants to give me a drug test. Is that legal?
  • My employer has a policy that I can be tested if he/she has "reasonable suspicion" that I am taking drugs. Is that legal?
  • Can my employer randomly test me for drugs without having reasonable suspicion?
     

Can I be fired for taking prescription medication under doctor's orders if it shows up on a drug test?
You may be protected by the Americans with Disabilities Act (ADA). Under the ADA, an employer cannot discriminate based on disability. However, if over time the disability no longer exists, if the medication is interfering with your ability to perform essential job functions with reasonable accommodations, or if you are taking the medication illegally, then you can be fired.

For more information on disabilities and the workplace, such as what is considered a disability and what constitutes an essential job function, please visit our disability discrimination page.

I'm applying for a job, and my employer wants to give me a drug test. Is that legal?
Yes. In most cases, an employee seeking first-time employment can be tested as a condition of employment, even if there is no cause or reason to believe that the prospective employee has been taking drugs. The employer, however, must test all incoming employees for drugs and may not single you out for special treatment.

Some states have imposed limitations on pre-employment drug testing. For example, California allows a drug test only after the applicant has received an offer of employment conditioned on passing the test. In other states, employers that drug test are required to provide written notice or indicate in their job postings that testing is required.

My employer has a policy that I can be tested if he/she has "reasonable suspicion" that I am taking drugs. Is that legal?
Yes. Just like incoming applicants can be tested for drugs, so can existing employees. The only difference is, in most cases, your employer must have reasonable suspicion that you have been taking drugs before you can be tested.

Reasonable suspicion means that the employer has a legitimate reason, based on logic and facts, to believe that you have been taking drugs, and isn't just guessing, speculating or discriminating against you. Reasonable suspicion can be different in different circumstances. Examples of reasonable suspicion include but are not limited to:

  • Direct observation of drug use or physical symptoms of drug use (slurred speech, uncoordinated movement, etc.)
  • Abnormal conduct
  • A report from a reliable source that an employee is using drugs
  • Evidence that an employee has tampered with his/her drug results
  • Erratic behavior while at work or significant deterioration in work performance
  • Evidence that the employee has used, possessed, sold, solicited, or transferred drugs while working or at work

Can my employer randomly test me for drugs without having reasonable suspicion?
It depends. Many states require that there must be reasonable suspicion to test an employee, and employers that have not complied with this requirement have been successfully sued. However, state laws vary, and in some states, private employers are permitted to randomly test their employees, even without reasonable suspicion, as long as advance notice is given. Courts have generally held that no suspicion is needed to randomly test current employees in jobs that pose a serious risk of human injury or property damage.

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