Ironically, workers in states that have laws regulating the timing and procedures of drug and alcohol testing may have more protections than those living in states with no testing laws.
Employees living in such lawless states, for example, may generally be tested without advance notice. There are seven guidelines for random drug testing in the workplace. The first and single most important step is to include a draft of a written policy.
The employer must work with legal counsel to develop and implement a policy in accordance with the state laws. This will notify the potential hires early in the application process and obtain their consent before testing. Conduct a pre-employment test only after making a contingent offer to the potential employee as it is illegal to test without a contingent offer being made first. To avoid claims of discrimination test all, not one.
Your employer can fire you for refusing to take a test, and there will be no evidence to show you were not on drugs. In some states, such as Colorado, you can be denied unemployment benefits when you are fired for refusing to take a drug test where the employer had a preexisting written policy prohibiting drug use. What if you took a drug test, but were unfairly suspended or demoted as a result?
In that case, you may need to retain an attorney to show that your employer or the test-takers didn't meet the requirements of your state's law. This can be difficult because employers have considerable leeway in designing the test-taking conditions, such as requiring you to take the test in a hospital gown to make sure you haven't tampered with the urine sample. However, there are limits to the leeway given to employers.
For example, your employer may not have a monitor watch you take the test. There are also laws in place in some states, such as Maine, that require employers to follow very detailed procedural rules, such as adopting a written policy approved by the state labor department or maintaining workplace counseling.
Among these are laws related to the specific standards that testing labs must follow. It may be possible to challenge an employer's conduct in this regard if you are fired for failure to take a test or if your test comes back with results indicative of drug use. Employees in the many states that have not enacted specific legal procedures related to drug or alcohol testing, such as Massachusetts, Pennsylvania, Illinois, Texas, and California, may be more vulnerable to being tested without notice and without safeguards in place.
Employees in those states will have to rely on other legal theories to challenge an employer's right to test, like invasion of privacy or discrimination.
In California, for example, courts balance the employee's legitimate expectation of privacy, granted by the state constitution, against an employer's reason for testing. The American with Disabilities Act ADA requires that employers reasonably accommodate an employee who uses legal drugs for a disability.
However , this is not necessarily the case for medical marijuana , which is still illegal under federal law. Last reviewed October Employment Law Contents. The supervisor must document any facts suggesting that the individual is under the influence. These could be physical signs such as bloodshot eyes or slurred speech , behavioral signs such as excessive absences or a decline in performance or psychological signs such as changes in attitude or sudden mood changes.
However, a solid drug and alcohol policy must in place that prohibits drug or alcohol use in the workplace and allows employees to report reasonable suspicion. In addition, supervisors, managers and HR personnel should be trained with Reasonable Suspicion Training to learn the signs and symptoms of drug abuse and alcohol misuse in the workplace. Random drug screen. If your company policy allows for random drug screens, an employer can test an employee at any time.
This can be especially important in high-turnover industries or for employees working in safety-sensitive positions. The importance of a drug and alcohol policy As an employer, you must establish a drug and alcohol policy that clearly communicates the details of your drug-testing policy, including how and when it can occur. This may be in your contract or staff handbook, both of which you should check to see if your employer can make you have a drug test.
Sometimes drug testing policies are introduced after you have been working somewhere for a while — in this case you will have to accept this separately or agree to a change to your contract. You can say no to any suggested change in your contract and the employer cannot force you to accept it.
This might be a problem if you are on a fixed term contract as when it comes to renewal the employer will want you to sign a contract on the new terms. If you have not signed up to a drug testing policy you can refuse to be tested and your employer is not allowed to take any action against you. However, you should be aware that refusal may make your employer suspicious of your reasons for saying no.
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