Pre-employment drug testing is fairly common for employers in Pennsylvania and New Jersey. Some employers also have mandatory testing for their employees on a random basis. If you have been asked to take a drug test by your employer or your prospective employer, here is some information about the laws that apply from the attorneys at Swartz Swidler.
Why do employers require drug testing?
Other than certain safety-sensitive industries and for transportation companies, most private employers do not have requirements for them to complete drug testing of their employees. However, employment drug testing is very common. There are several reasons why employers use drug testing, including the following:
- Qualifying for discounts on their workers’ compensation insurance premiums
- Avoiding liability
- Maintaining productivity
Employers are offered a discount on their insurance premiums in many states for taking steps to keep a drug-free workplace, which leads many employers to opt for drug testing. Employers also test to avoid the potential for liability in case an intoxicated employee causes injury to someone else while he or she is working. Finally, drug and alcohol use by employees cost businesses money and cause losses of productivity, which leads many employers to drug test their employees.
Are there any legal limits for drug testing?
There are limits to employment drug testing because of the privacy rights of the employees. When employees submit to drug tests, the tests show both current and past use. The tests also show legal drugs that the employees take and require the employees to give up bodily fluids for testing.
The intrusiveness of drug tests has led to limits on how, when, and whether they can be performed. Current employees have more rights than applicants because they could lose their jobs if they have positive tests.
You can’t be forced to take a drug test by a potential employer. However, a prospective employer can ask you to take a drug test as a condition of gaining employment. If you refuse to take the drug test, you would likely simply not be given the job. However, there are some legal limits that employers must follow.
If you are taking a medication because of a disability that falls under the Americans with Disabilities Act, you are protected. Some medications that are legally prescribed will appear on drug tests, including some that would be illegal if they were not prescribed to treat different medical conditions. If you are turned down for a job because of a positive drug test for a medication that you were prescribed for a disability, the company could potentially be liable.
Companies can also be liable if they single out specific groups of applicants for drug testing. For example, if an employer only requires applicants of a specific racial minority to submit to drug tests, the employer may be liable for illegal discrimination.
While most states allow employers to test their employees for drugs, many have procedural requirements for drug testing. For example, some states only allow employers to ask for pre-employment drug tests after they have made offers of employment that are conditioned on a negative test. Some states require employers to give notice to applicants that they test for drugs. Utah only allows employers to test for drugs if their management staff also have to submit to periodic drug tests.
In some cases, drug testing may constitute an invasion of privacy even when it is allowed. For example, if an employer requires you to submit to a urine test in the presence of someone else, it could be a violation of your privacy rights.
Medical marijuana and drug testing
Medical marijuana is legal in more than 20 states, including both New Jersey and Pennsylvania. If you meet the criteria for being able to use medical marijuana, you cannot be charged with a crime for using or possessing it under state law.
However, in most states that allow medical marijuana, an employer can still decide not to hire you based on a drug test on which you test positive for marijuana even if you have a valid prescription. A few states have passed laws that prohibit employers from discriminating against employees for lawfully using medical marijuana. This area of law is still in flux, however. You should talk to an employment lawyer in your state to learn about the rules that apply where you live.
Contact Swartz Swidler
While employment drug testing is allowed, employers must follow the rules. If you believe that your employer or prospective employer has violated your rights by how your drug test was administered, you should talk to one of the experienced employment law attorneys at Swartz Swidler. Request a consultation by filling out our online contact form.
