Drugs and Alcohol Testing in the Workplace

Even if your privacy rights are not violated, all tests must be administered in a consistent, evenhanded manner. For example, if female employees are being tested and fired as a result of such tests in far greater numbers than male employees, a charge of sex discrimination might be valid under certain circumstances.

How the employer handles the test results is another important consideration. Results must be treated in the same manner as other confidential personnel information. Unwarranted disclosure of this information (even within your company) when made with reckless disregard for the truthfulness of the disclosure, or excessive publication, can allow you to sue for damages. One employee was awarded $200,000 for defamation after her employer internally and externally published written statements regarding drug screening results incorrectly showing a trace of methadone.

Additionally, a firing based on a positive test finding that later proves inaccurate could lead to a multitude of legal causes of action, including wrongful discharge, slander, and invasion of privacy. If the employer fails to hire a reputable testing company or the test results are inaccurate, you can challenge the test on this basis. Thus, recognize that there may be ways to challenge the test results in the event you are fired or treated unfairly. Speak to an experienced lawyer immediately when:

The test was not administered fairly; i.e., no advance warnings were given or there was inconsistent enforcement;

The penalty for violations was too severe (e.g., an employee was fired for possessing a small amount of marijuana in her locker but proved she did not smoke the drug on company time);

The reliability of test procedures and/or results is suspect;

The employer cannot prove the identity of the illegal drug allegedly found in the test;

The specimen was not properly identified as belonging to the accused worker;

No confirmatory tests were made following positive preliminary screening; and

The company engaged in discriminatory practices relating to its testing procedures.

Recognize that federal workers, employees engaged in security-conscious industries (e.g., those who are required to carry firearms), and employees who handle money or engage in transporting members of the public (bus drivers and train engineers) have fewer legal rights to oppose drug and alcohol tests because of the nature of their jobs. However, even when testing is legal, employers must follow proper procedures to be sure that results are accurate and are not disseminated carelessly. Results should be handled on a strict need-to-know basis, employees should be given an opportunity to explain any result, and the test results should be reconfirmed if possible.

Finally, since former drug users (and current alcoholics) may be characterized as individuals with a former or current disability that does not prevent them from performing the duties of their job, any adverse action (such as discharge) taken may be fought under federal and state discrimination laws, possibly even in the presence of positive test results.