Is Drug Testing Legal? What You Need to Know

By James Parker
/
July 14, 2022

The first drug testing policies as they are known today were instituted in the 1980s during the presidency of Ronald Reagan and the infamous “War on Drugs.” 40 years later, the landscape of what qualifies as an illegal drug has shifted and with it, employee expectations for what is and is not an acceptable drug test result.

As an example, many states have legalized marijuana for either recreational or medical use by their populations. Employees in these states would then expect that a positive result for marijuana’s active component, THC, would not be disqualifying on a drug test. However, as this article discusses, the topic of drug tests and their administration in the modern workforce is a complicated and nuanced subject. To get to the heart of the question “are drug tests illegal?” the answer is: sometimes.

What is Drug Testing?

Drug testing is a broad process that can have many variances. The catch-all definition of a drug test is a process that identifies signs of controlled substances in a biological sample given or taken from an individual. Drug testing is generally used by employers, prosecutors, rehab programs, professional athletic programs, or medical monitoring systems.

The biological sample can vary widely depending on the testing company and the substances being tested for. The most common biological sample analyzed for substances is urine. Other biological sample types exist and include blood, hair, saliva, and sweat. The process for analyzing these samples is generally similar, the sample is tested using a chemical process like chromatography to determine whether the active components of the targeted substances are present in the sample.

The term drug test is actually an oversimplification of what a drug test can actually find. A drug test can find a number of controlled substances including:

  • Alcohol
  • Amphetamines, such as methamphetamine
  • Barbiturates, such as Butisol or Amytal sodium
  • Benzodiazepines, including Xanax or Valium
  • Cocaine
  • Marijuana
  • Opioids and opiates, such as heroin, hydrocodone, or fentanyl
  • Phencyclidine, better known as PCP
  • Steroids

Certain substances are easier to detect than others. For example, THC from marijuana can linger in detectable amounts for up to a month. By comparison, detectable signs of alcohol can vanish in hours and heroin usage can be undetectable as soon as two days later. How fast a substance can become undetectable depends on a number of factors including the dose used, the user’s ability to metabolize the substance, and how long the substance has been used by the individual.

If a target substance is detected, the drug test will return a positive result. If a drug test is unable to detect the markers for the target substances, then it will return a negative result. In no case is the test able to discern when the user was using the substance.

Drug Tests in the Pro-Marijuana States

One challenge for many potential employees facing a drug test surrounds marijuana use. The laws regulating marijuana in the United States are fractious and varied. The majority of states have laws that allow for marijuana to be used in a medical capacity and about 20% of states have laws that allow marijuana to be bought, sold, and used recreationally. 

Despite the variety of state laws regarding marijuana use, there are some instances where a drug test that returns positive for marijuana will result in an employee losing their job or an applicant being denied employment. Most of those instances involve the federal government. Because there are no laws that acknowledge marijuana usage for any reason, medical or otherwise, federal jobs all prohibit marijuana usage. 

Not only that, but any company subject to the rules of the Federal Department of Transportation are also subject to the federal ban on marijuana usage. Additionally, any private company that has government contracts stipulating that a drug free workplace must be maintained will also be required to turn away employees who test positive for marijuana.

In addition to federal positions, some private companies may have positions that prohibit marijuana use. These positions usually include the usage of vehicles or heavy machinery. Unfortunately, this can impact disabled workers more harshly than able-bodied workers. 

For example, if an employee used THC products in order to manage the chronic pain associated with fibromyalgia, they would turn up positive for a drug test looking for marijuana use. Traditionally, if an employer refuses to hire an individual with a disability due to how they manage their condition, this would infringe on the employee’s rights under the Americans with Disabilities Act (ADA). Since the ADA is a federal law, however, it will not protect any disabled persons using marijuana.

When it comes to legal marijuana states, protections vary wildly for employees. Some workers are allowed to use a medical recommendation to protect themselves from being rejected by a positive marijuana test, others cannot. Connecticut, for example, has a law that states that a “qualifying patient” may not be subject to discharge, penalty, or threat from their employer. These laws will usually have carve-outs for being impaired by marijuana while on the job site, but otherwise, these state protections are the most solid defense against being denied the opportunity due to a positive marijuana test.

Some states who offer protections for marijuana users even have reasonable accommodation clauses that offer similar protections to those found in the ADA with the explicit inclusion of marijuana users.

One instance where a drug test is always illegal is if it is done discriminatorily. If an employer subjects people of a certain race, color, sex, national origin, or other protected class to a drug test then it is a violation of Title VII of the Civil Rights Act of 1964 and illegal. Discriminatory behavior, including selective use of drug testing should be reported to the Department of Labor’s Equal Employment Opportunity Commission (EEOC).

What to do if You’ve Been Subjected to an Illegal Drug Test

If you have been subjected to discriminatory drug testing in the workplace or were denied a job for drug use that was legal, you may be able to file a lawsuit in order to seek justice for the losses that you have suffered. By demonstrating the ways in which you have suffered discrimination or been unfairly dismissed, you may be able to receive compensation for your injuries. The best way to prevail in your lawsuit is with an Employment Law attorney.

An experienced Employment Law attorney can zealously advocate on your behalf in order to get you the best possible outcome for your case. Using their legal expertise, trial tactics, and expert witnesses, your Employment Law attorney will be able to gather evidence of your mistreatments such as email records and witness testimony and present that information in the most compelling way for your case.

Don’t wait, contact AAL today and begin your journey to justice.

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