Brown Law Office 972-355-0092
Brown Law Office 972-355-0092
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Employer Law FAQ

What Types of Drug Testing May Employers Use?

The availability and type of drug testing private employers may use is regulated by state and local law and varies greatly by jurisdiction. While some types of testing, such as pre-employment testing, have become widely accepted practices, other types of testing, such as reasonable suspicion and random testing, have faced many legal challenges. Thus, it is necessary for employers to be knowledgeable about the laws in their jurisdiction and any local ordinances or regulations that may impact their ability to test job applicants and employees before implementing a policy.

Pre-Employment Testing

Employers have an interest not only in hiring the most qualified applicant for a position, but also in enforcing a drug-free workplace. One of the ways employers can do this is by requiring job applicants to submit to tests that screen for illegal substances.

Employers generally are allowed to condition an offer of employment on the results of a drug test. Courts have found this does not create an undue burden for job applicants because they have the choice not to apply for the job and can seek employment elsewhere.

Probationary Period Testing

Some employers require new employees to submit to random drug testing until they have been with the employer for 6 months up to one year. Employers who want to test employees for alcohol use in addition to illegal drugs must meet the standards articulated under the Americans with Disabilities Act, which may include the employer showing a business necessity for the testing.

Reasonable Suspicion Testing

In some jurisdictions, employers may be able to require certain employees to undergo drug testing based on the employer's reasonable suspicion the employee is under the influence of illegal substances or alcohol. States that permit this type of testing have a variety of standards employers must meet in order to conduct a reasonable suspicion test. Some examples of behaviors that may give rise to reasonable suspicion include:

  • Drastic changes in the employee's appearance or behaviors
  • The smell of alcohol or marijuana on the employee
  • Erratic employee behaviors, including slurred speech, angry outbursts, agitation, confusion

Random Testing

Randomly selecting employees for drug testing is often used in safety-sensitive workplaces where illegal drug use could threaten not only the user's safety, but that of co-workers as well. This type of drug testing has generally been upheld by courts so long as the employer has a well-defined written policy, employees have notice of the policy and the employer protects the confidentiality of testing results. In their policy, employers should explain the selection process, how specimens are taken for testing, how specimens are analyzed, and what types of disciplinary actions employees who fail or refuse to submit to the testing face. A minority of states do not permit private employers to conduct random drug testing.

It is important to note that employers may be restricted by local and state law in the availability of these types of tests. Some states heavily regulate drug testing in the workplace and set standards for the type of testing that may be used, who may conduct the testing and who may view the results. Other states may only regulate testing for state public employees.

An employment law attorney in your area can discuss your jurisdiction's laws and the impact any federal laws or collective bargaining agreements may have on your company's ability to implement a drug testing policy.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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Betty L. Brown
Board Certified by the Texas Board of Legal Specialization
in Labor and Employment Law
Fountain Park
1021 Long Prairie Road, Suite 402
Flower Mound, TX 75022
Phone: 972-355-0092
Fax: 972-899-9635
E-mail: betty@brownemploymentlaw.com