Does drug testing job candidates and employees actually work? Can you build a better workplace by conducting drug screens on applicants and employees? What are the legal ramifications?

Let’s start with the easy part: every state permits drug testing. The hard part? No two states have the same statutes or case law plus there are issues with mandatory testing versus voluntary testing versus required testing.

Every State Allows

Besides allowing drug testing, states have several other things in common. Every state permits:

• urine testing.
• pre-employment testing.
• some type of employee testing.
• laboratory-based testing.
• consequences for a positive testing result.

State Differences

States with mandatory testing determine the regulations, usually about how to do the testing; companies must adhere to the guidelines. For states with voluntary testing, the state offers incentives for testing, such as the right to deny workers compensation for a positive screening result. There are also states with required testing for workers in home health, childcare, and public works. Besides drug testing, these states require regular alcohol testing. The ACLU provides a nice printable chart of state drug regulations. (Learn more in "Medical Marijuana Use and Concerns in the Workplace".)

Even though drug screening can invade an employee’s privacy, the Supreme Court has ruled that using urine or blood samples is a simple procedure. Privacy is only invaded if other people are watching (aside from a witness if sample tampering is suspected). Drug testing also protects the safety and health of others.

Generally Accepted Drug Testing Procedures

General Guidelines for drug or alcohol screening:

• PRE-EMPLOYMENT: All applicants should be informed and aware that drug testing will be performed as a condition of being hired. To avoid discrimination regarding candidate selection, the test should not be conducted until after the job has been offered. The employer can’t selectively screen candidates; all candidates or at least all candidates for the same position must receive the same treatment. Likewise, there can be no secret testing, such as using a strand of hair that fell from an applicant.
• RANDOM SCREENING OF EMPLOYEES: In some states, there must be reasonable suspicion before asking an employee to give a sample. In other states, as long as employees are aware that random screening can take place, an employer can conduct drug testing. Usually the random screening is done for jobs that can cause injury, risk to others, or property damage.

• ACCIDENTS: Employers may usually request a drug screen after an accident in order to complete a thorough investigation. Employers are entitled to find out the extent of their liability by discovering if an employee contributed to the accident. As of 8/10/2016, the final rule of the Occupational Safety and health Administration (OSHA) regarding electronic reporting of injury and illness took effect. Concerned that employees might not report work-related events due to fear of discipline or firing, OSHA requires that companies have “a reasonable procedure” that does not prevent reporting. Fines can be up to $12,471 per violation and $124,712 for willful violation.
• REASONABLE SUSPICION: Before asking an individual employee to submit to drug or alcohol screening, an employer must have a legitimate reason. Examples of reasonable suspicion include:
  • Direct observation of drug or alcohol use.
  • Obvious signs, such as slurred speech, sudden lack of coordination.
  • Deteriorating job performance or erratic behavior.
  • Reliable reports that employee has used or possessed drugs at work.
  • Evidence that employee altered, or tried to alter, drug test results.

Types of Testing Allowed

What kinds of testing are available? (Learn more in "Drug Test Types: 5, 7, and 12 Panel Urine Screening Differences and Reasons to Use")

Most states restrict the type of testing, and tend to lag behind current methods. Again, check your state to find out which techniques are approved before proceeding.

1. Breath: A breath-alcohol-concentration (BAC) test provides immediate information about how much alcohol is in the blood system. The Department of Transportation (DOT) has determined that a BAC of 0.02 has been shown to inhibit performance. As a way of comparison, BAC levels have been correlated with impairment, and the legal limit of 0.08 for driving has been set in all states.
2. Urine: Accurate results for the previous five days. It does not mean the candidate was under the influence at the time of the sample. (Learn more in "Oral Fluid, Urine, and Hair Testing: What's the Difference?")
3. Blood: Can provide an accurate measure at the time of the blood draw. However, blood is not the most accurate way to get a history of ongoing drug use.
4. Hair: The newest method, it provides information for the last 90 days. It says nothing about the employee’s current situation, but only past drug use. It does not detect any recent or current alcohol use. Check with your state before conducting this test. (Learn more in "Hair Follicle Drug Testing 101".)
5. Oral: A simple swap of the inner cheek and mouth, or spitting into a cup to collect oral fluid might be the most promising way to collect information. With current marijuana trends, it can be better at detecting recent intake. (Learn more in "Everything You Need to Know about Oral Fluid Drug Testing".)
6. Sweat: Not yet reliable, the employee gets a patch and wears it for a pre-determined amount of time. Easy to do, but not recommended for workplace testing.

Federal Laws to Consider

Significant Federal law on testing is a result of the Drug-Free Workplace Act of 1988. It states that employers with Federal contracts or grants must maintain a drug-free environment, or they can lose the funding. However, there are no specifications about testing or workplace programs.

Other Federal regulations on drug testing tend to focus on areas that have government specific government involvement, such as transportation, nuclear energy, or military contracts. (Learn more in "8 Things Employers Should Know About DOT Drug and Alcohol Testing".) For example, the Department of Transportation, which oversees over eight million employees, including the Federal Aviation Administration (FAA) and the Federal Transit Administration (FTA), states an annual minimum testing rate of 25% for drugs and 10% for alcohol. (Learn more in DOT vs Non-DOT Testing: What's the Difference?") The Department of Energy has clear guidelines regarding who gets tested and the consequences of a positive drug screen.

Data about how many companies use drug testing vary. According to Joe Pinsker, in an article for The Atlantic, about 40% of candidates are required to take a drug test as part of the hiring process. In 2014, Quest Diagnostics, Inc., a major U.S. testing company reports that 9.1 million employees took a drug test, with 350,000 positive results, about 3.9%. The cost of the test ranges between $30 to $50 per employee.

Employers who choose to either use drug testing for new hires, or to perform random testing for employees, should be certain to adhere to state law. Policies must be in place and followed carefully to avoid any claims of discrimination. (Learn more in "The Importance of a Good Drug and Alcohol Policy in the Workplace".) The company should also have a policy for the process if a test result is positive.