Drug Testing

According to a report released by the Substance Abuse and Mental Health Services Administration, 8 percent — about one in 12 — full-time workers ages 18 to 64 used illegal drugs in the past month.

The study, from the 2011 National Surveys on Drug Use and Health, uncovers an important finding for business owners, showing that current drug users were more likely to work for employers that did not conduct drug or alcohol testing programs. In addition, nearly a third of current illicit drug users said they would be less likely to work for employers that conducted random drug testing.

Because drug use can affect your employees' health and productivity, it's important to periodically review your drug-testing policies. By implementing workplace drug-testing policies, you may be able to help prevent drug use before it starts, identify employees who need drug treatment, and reduce work-related accidents due to illegal drug use. One of the biggest issues employer face when dealing with drug testing is invasion into employee privacy.

In the late 1980s, the U.S. Supreme Court approved employer testing of job applicants and employees for drugs and alcohol in special circumstances. Also, federal legislation, most notably the Drug Free Workplace Act of 1988, requires most federal contractors and grantees to create policies designed to maintain a drug-free workplace. A later law mandated testing regulations for the transportation industry.

Several federal agencies have implemented testing requirements. For example, the U.S. Department of Defense tests all security-sensitive employees, while the U.S. Department of Transportation requires the same for a wide range of employees such as truck drivers, airline crews, train crews, and pipeline employees in safety-sensitive jobs.

Many states have enacted their own statutes, including testing standards, designed to ensure drug-free and alcohol-free workplaces in both the private and public sectors. Testing also is widespread in the remaining states, especially among larger employers.

Comprehensive laws and regulations on alcohol and drug testing cover many issues. These include an employers’ right to test, the creation and communication of policies, the collection and custody of samples, laboratory licensing and procedures, the consequences of positive results, confidentiality of results, and the enforcement of rights and obligations.

State Laws on Medical and Recreational Marijuana

The use of "medical marijuana," defined as marijuana being grown domestically for personal and medicianal use for seriously ill patients, has been legalized in a number of states. Employers in states with medical and recreational marijuana laws can still prohibit the use of marijuana in the workplace. Furthermore, employers that have "zero tolerance" workplace substance abuse policies can continue to rely on the fact that marijuana is illegal under the federal Controlled Substances Act, even if individuals using medical marijuana may be released of criminal liability under certain states' laws. However, these state laws may continue to pose accomodation issues under state disability discrimination statutes for use outside the workplace. 

The DOT's notice regarding state recreational marijuana laws. In reaction to states passing initiatives to permit use of marijuana for so-called recreational purposes, the U.S. Department of Transportation (DOT) issued an "Alcohol Policy and Compliance Notice" (Notice) in December 2012. DOT's long-standing regulations prohibit the use of marijuana by safety-sensitive transportation employees. DOT's Notice clearly states that the state initiatives have no bearing on DOT's regulated drug testing programs. DOT's Drug and Alcohol Testing Regulation does not authorize the use of Schedule I drugs, including marijuana, for any reason. As a result, says DOT, Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used recreational marijuana when states have passed recreational marijuana initiativies. In addition, says DOT Notice, an MRO will not verify a drug test negative based upon information that a physician recommended that the employee use "medical marijuana" when states have passed medical marijuana initiatives.