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Employee drug testing is a double-edged sword. On one hand, drug testing can keep the workplace safe and productive. On the other hand, there are issues of privacy, avoiding the appearance of discrimination, and protecting the employees’ rights to privacy. This post examines both sides and focuses on the ethics and issues that affect both the employer and employees.

Federal and State Mandates and Restrictions to Drug Testing

What OSHA Allows

The Occupational Safety and Health Administration (OSHA) is the federal government’s watchdog and enforcer. Its main mission is to promote safe and healthy working conditions. The bottom line is OSHA must enforce the federal law requiring employers to provide “a workplace free from serious recognized hazards.”

OSHA neither mandates nor prohibits drug testing, but it provides examples of permissible drug testing including:

  • Random drug testing.
  • Drug tests not related to the reporting of a work-related injury or illness.
  • Testing required by a state workers’ compensation law.
  • Mandated testing in compliance with other federal agency rules.
  • Drug testing to find the cause of a workplace incident.

What OSHA Requires

If an employer chooses to do drug testing while investigating a workplace incident, “the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”  OSHA permits employers to only conduct drug testing based on “reasonable suspicion.” (See the discussion below on drug testing issues related to discrimination.)

Other OSHA drug testing requirements include:

  • Giving adequate notice to employees before conducting drug testing.
  • Keeping drug testing confidential and sharing the results only with professionals who have a legitimate need to know.
  • Ensuring fair treatment and prohibiting discrimination against employees who test positive for drugs.
  • Conducting drug testing using reliable and accurate methods.

Other Laws that Govern Workplace Drug Testing

Most states allow employers to test job applicants for drugs, so long as they follow the state’s rules on notice, fairness, and consistency. Some states—Maine, Minnesota, New Hampshire, Rhode Island, and Vermont—restrict random drug testing, except in cases involving workplace safety or sensitive positions. (For a listing of states that require pre-employment drug testing see the Zippia webpage.)

The Federal Government has no single act that governs drug testing in every workplace. There are, however, several federal laws governing discrimination against employees who test positive for drugs:

The Americans with Disabilities Act (ADA) prohibits discrimination against employees who have a history of drug addiction or are currently undergoing treatment for addiction. The ADA requires employers to accommodate those employees—e.g., time for treatment or modified work schedules.

The Drug-Free Workplace Act requires federal contractors and grant receivers to maintain a drug-free workplace and provide their employees with drug-free awareness programs. The act does not require automatic termination of employees who test positive for drugs, but the U.S. Department of Labor’s webpage on preventing substance abuse specifically requires drug testing:

“Drug testing can help reduce substance use among employees and can help identify employees who may have a substance use disorder. In a recovery-ready workplace, positive drug tests are first and foremost an opportunity to engage employees and support them in stopping drug use whenever possible.”

Ethical Considerations Surrounding Drug Testing

Drug Testing Issues Related to Privacy

On the other hand, the most outspoken opponent of drug testing is the American Civil Liberties Union. Says the ACLU:

“Indiscriminate drug testing is both unfair and unnecessary. It is unfair to force workers who are not even suspected of using drugs, and whose job performance is satisfactory, to ‘prove their innocence through a degrading and uncertain procedure that violates personal privacy…”

The ACLU points out that in the case of urinalysis screening:

  • The testing process subjects individuals to an offensive and degrading process.
  • A person’s urine can reveal many “details about a person’s life other than drug use.”
  • A person’s urine can be used to reveal whether an employee is pregnant or has some other medical condition not affecting performance on the job.

For the above reasons, the ACLU points out, “the Supreme Court has found that urine testing, like blood testing, constitutes a search under the Fourth Amendment.”

Drug Testing Issues Related to Discrimination

If not conducted fairly and consistently, drug testing in the workplace can lead to discrimination in several ways:

  • Drug testing could be used to target specific groups, excluding others. For example, an employer might target a specific race, gender, or age group.
  • More frequent drug testing could be used to discriminate against certain employees considered more likely to use drugs.
  • Drug testing results could be interpreted differently for certain groups: One employee tests positive and is immediately terminated; another who tests positive is referred to treatment.
  • Racial or ethnic stereotyping could be in play if an employer views certain employees as more likely to use drugs based on their appearance, culture, and other factors.

So, in cases where drug testing is mandated or warranted, it is crucial that employers ensure that the testing is done fairly and consistently for all employees. Drug testing results must be interpreted consistently, and biases or stereotypes must be discounted so as not to influence employment decisions.

The bottom line is that drug testing must be based on reasonable suspicion that an employee is under the influence of drugs or that the workplace is being undermined because of drug use.

According to NOLO, (and supported by OSHA), some courts and state laws mandate general guidelines governing reasonable suspicion:

  • The person or group of persons demonstrate physical symptoms of drug use—slurred speech, lethargic or agitated personal demeanor, lack of coordination in physical movement, and inappropriate responses to questions.
  • There has been a significant deterioration in work performance or unusual/abnormal conduct while at work.
  • The employer has received an independently corroborated report by a reliable and credible source that drug use is going on in the workplace.
  • There is evidence that a work accident was caused by drug use.
  • Evidence exists of drug use, possession, selling, solicitation, or transferring drugs while at work.
  • There is reasonable suspicion that an employee has tampered with drug test results.

Drug Testing Issues Related to Employee Rights

Unless conducted in a fair and consistent way, drug testing in the workplace can infringe on the rights of employees. For example:

The Right to Privacy

As discussed previously, drug testing can be seen as an invasion and violation of the employee’s right to privacy. Employers must be certain that the reason for conducting drug tests falls within OSHA’s reasonable guidelines and does not unnecessarily violate the privacy rights of their employees.

Also, employers must safeguard drug test samples and store them in a secure and confidential manner. Samples must be protected from tampering or contamination and from access by unauthorized personnel.

The Right to Due Process

Due process requires that employees receive a notice and an opportunity to present their case before any adverse employment action is taken against them. If the employee tests positive, the employer should give the employee an opportunity to explain the results and any extenuating circumstances that may have caused the positive test results.

The Right to Confidentiality

As mentioned previously, under OSHA rules, employees have a right to confidentiality. Employers must keep test results confidential. Only those persons who have a legitimate need for the test results should be permitted access to the information.

The Right to Fair Treatment

Employees have the right to be treated with respect and fairness. As discussed above, when drug testing is conducted in an unfair and discriminatory way, the employee’s rights are violated.

The Right to a Drug-free workplace

OSHA recognizes the obligation of employers to provide a safe and hazard-free workplace for all employees. Likewise, OSHA prohibits retaliation against any employee who reports unsafe work conditions or files a complaint. OSHA provides special protections to employees who report unsafe work conditions.

cannabis grower with cannabis plants

Summary and Conclusion

  • Drug testing is a two-edged sword. Employers have a right to a drug-free workplace, but employees have rights to privacy and confidentiality. Federal and state laws permit drug testing, but not all states allow random untargeted drug tests.
  • The main exception is the federal Drug-Free Workplace act that requires contractors to conduct drug tests.
  • The ACLU, however, is adamantly opposed to drug testing for a variety of reasons. Drug tests, according to the ACLU, among other things are offensive and degrading.  They violate workers’ privacy and can disclose other private medical information.
  • There are several drug testing issues related to discrimination, employee rights, privacy, due process, confidentiality, and fair treatment. Those issues raise valid ethical considerations that employers must consider in maintaining the health and safety of their work environment.
  • Both employers and employees have a right to a drug-free workplace. Employees must not be penalized if they lodge a complaint, and employers must provide fair and equitable treatment in administering drug tests and applying the results.

Cannabis, however, is legal.

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