When an Employer Demands a Drug Test

Drug testing is common and easily done these days, but is it legal? Can an employer demand that an employee take a drug test?

Drug Testing by Employers is Legal

Many people don’t realize that many private, state, and federal employees can all be compelled to take a drug test.

At the federal level in the United States, anyone who works in law enforcement or national security, or has a duty to protect the life, safety, health or property of another person or group of people can be required to take a drug test. The legality of drug testing has been upheld by the Supreme Court, which has ruled that even though it is an infringement on an employee’s privacy, the need to protect the safety and health of others supersedes the right to privacy.

State laws, generally speaking, fall in line with federal laws, and also uphold the right of the state to test its employees. Some states (California is one), permit the testing of any new employees, but prohibit testing of current employees unless there is cause. California also strictly limits the circumstances in which drug testing can be administered.

When it comes to private employers, state and local laws can vary, but the employer usually has a fairly broad discretion when it comes to drug testing. Private employers can, and frequently do, test employees for reasons of health and safety, to prevent drug-related illegal activity in the workplace, and even simply to increase productivity.

In Canada, drug testing is permitted nationwide. However, it’s not all that common. A recent survey, in fact, published in the Canadian Journal of Public Health revealed that only 10% of worksites nationwide that have one hundred or more employees use drug-testing programs. The province of British Columbia has the highest rate of workplace drug testing, at 18%.

Job Applicants and Drug Testing

In most areas, employers have the right to test any person who is seeking employment, even if that potential employer has no reason whatsoever to believe that the prospective employee is a drug user. However, the employer can’t discriminate – if he or she is going to test one potential employee, they all have to be tested.

In some states, there are limitations on when the testing can be performed. For instance, in California, an applicant for employment can only be tested after he or she has received an offer of employment that is conditional upon him or her passing the drug test. In other states employers who intend to test a potential employer for the presence of drugs are required to either state in their job postings or provide written notice of the intention to test.

Prevalence of Testing

Given the common practice of drug testing in today’s workplace, the need for qualified testers has increased exponentially. In fact, as of this writing, the job search website Indeed.com had listed over 11,000 drug testing technician jobs nationwide.

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