Employees often trust their employers’ polices to be well researched and vetted through counsel.  However, drug and alcohol policies are often purposefully vague to give the employer the upper hand.  For employees, it is always advisable to educate yourself on your state and local drug and alcohol testing laws, and speak with your HR team if you have any questions. 

The following tips will help you stay informed and will level the playing field if you are unjustly asked to participate in drug or alcohol testing.

State and Local Drug Testing Laws Vary Greatly

It is vital that employers recognize that different cities and states have very different drug and alcohol testing laws.  Some jurisdictions regulate the actual tests that can be conducted on an applicant or employee, what specimens can be taken, what drugs can be tested for, and even what disciplinary action can be taken for applicants and/or employees who test positive.

If your employer requires testing, make sure it is compliant with your local laws.

Inconsistent Disciplinary Action for Positive Test Results can be Considered Discrimination

It is not unheard of for companies to turn a blind eye for top performing employees.  Companies may purposefully include vague language in their written drug policy in order to protect top talent or show favoritism.

While an employer may choose to include a clause allowing for disciplinary action in the event of a failed drug test, it could be grounds for a discrimination case if it is not explicit.

DOT Requirements Cannot Extend to Non-DOT-Regulated Employees

The Department of Transportation has specific regulations that apply to regulated employees.  Employers sometimes wrongfully assume they can apply a DOT drug and alcohol policy to non-DOT-regulated employees, but, non-DOT-regulated employees’ drug and alcohol testing is actually governed by applicable state and local laws.

These state and local laws may prohibit certain tests required by the DOT.  Employees forced to comply with DOT regulations who are non-DOT-regulated may have the right to sue their employers.

Drug and Alcohol Testing After an Incident is Not a Best Practice

Testing for drug and alcohol use after an employee returns to the workplace from a work-related accident or injury is restricted under some state and local laws.  The Occupational Safety and Health Administration (OSHA) states there must be a reasonable possibility that drug or alcohol use could have caused the workplace accident in order to test upon an employee’s return to the workplace.  OSHA warns testing should not be completed when an employee’s injury was caused by anything obviously unrelated to drugs or alcohol, like an animal bite or an allergic reaction.

If you believe you have been treated unfairly when it comes to drug and alcohol testing, The Usman Law Firm is here to help.  While we fight for stronger protection for all workers.  We know that prejudice still exists and are here to help you in the case of discrimination or retaliation.  Contact us today if you are in need of assistance.

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