5 Legal Considerations When Testing Employees For Drugs

As an employer, you want to create an environment that supports your company’s goals while protecting the company from legal risks. In recent years, reducing alcohol and drug abuse in the workplace has become an important issue for employers. Employee drug use can lead to many risks, including reduced performance, absenteeism, accidents, and workplace safety concerns. 

It’s estimated that almost half of all companies test for alcohol or drugs, with drug testing significantly higher than alcohol testing. However, drug testing is one of the most controversial workplace measures. Employers should make several considerations before implementing a drug policy in their workplace. Below is an overview of the primary legal concerns for drug testing in the workplace.

Make Sure Drug Testing Is Allowed By Your State Laws

When implementing drug testing, employers must first comply with state laws. Each state has different laws, and you should find out about the laws in your state. This will help you know what you can and cannot do about drug testing in your workplace. 

For example, the employer must have reasonable suspicion of drug use before conducting a test according to the New York state employee drug testing policy. Still, in other states, that’s not the case. Some states also have specific periods when drug test results must be treated as “confidential” before they’re released.

All employers must follow specific guidelines under state law when testing. Employers must adopt a drug testing policy that includes important state provisions.

Ensure You Have A Reliable Test

Another important aspect of screening employees for drugs is the accuracy of the tests. The accuracy of drug tests depends on the type of test, the type of drug tested, and the length of time the substance remains in the employee’s body. 

Drug tests can be either qualitative or quantitative. Qualitative tests only indicate whether or not a substance is present in the sample, while quantitative tests also show the amount of the substance present. For example, a qualitative test for THC indicates whether or not the sample contains THC, while a quantitative test indicates how much THC is present in the sample. 

If you want to use a drug test to measure impairment, a qualitative test will suffice because impairment is indicated by the presence of THC (or another substance) in the sample. However, if you want to measure drug use, you need a quantitative test because a qualitative test cannot indicate the amount of each substance in the sample.

Be Clear About What Constitutes Drug Testing?

Before you implement drug testing, you should determine what testing you will conduct. Some employers choose to test for various substances, while others focus primarily on one substance. 

Some common types of drug tests are: 

  • Urine testing: this is a common drug test involving taking a sample of the employee’s urine. Urine tests are relatively easy to perform and detect various substances, including certain prescription drugs. 
  • Hair follicle testing: this type of test looks for drugs in an employee’s hair, which can provide a longer-term view of drug use. These tests can be helpful in situations where an employer wants to know if an employee is using drugs outside of work. 
  • Breath testing: this test is typically used to detect alcohol use. Similar to blood tests, an employer can use an on-site breath alcohol test to determine if an employee has been drinking. 
  • Oral fluid testing: this is a relatively new drug testing method that uses a swab of an employee’s saliva for drug testing. Oral fluid tests are handy for testing drugs such as cannabis, normally detected in urine.

Offer Rehabilitation Support to Employees Struggling With Addiction

While drug testing can effectively curb employee drug use, it is not a panacea for drug use in the workplace. Drug testing can help reduce drug use in the workplace, but it is essential to remember that it is not a cure-all.

Drug testing is helpful when combined with other strategies to promote a healthy and productive workforce. Employers can help employees struggling with substance abuse by offering rehabilitation assistance. This could include access to an Employee Assistance Program (EAP) or referral to a certified addiction treatment provider.

By offering help to employees struggling with addiction, you are showing that you are committed to their health and well-being while reducing the risk of them hurting themselves or others at work.

Make Business Needs Justify Your Actions

Many employers are too quick to cite drug use as a reason for termination, even when drug use does not interfere with job performance. It is important to remember that as an employer, you must demonstrate that you have a legitimate business reason for taking action against an employee, such as termination. 

If an employee is suspected of being under the influence of drugs at work, you may be able to take disciplinary action, such as a written warning. However, you cannot take disciplinary action if an employee does not show up for work because of drug use, even though they are not under the influence.

Employees must also consent to the drug test before taking it. By giving their consent, they are giving the employer and medical professionals permission to administer the test. Employers should communicate their company policies to avoid instances where employees refuse to consent to a drug test.


Workplace drug use often poses significant legal and reputational risks to employers. A drug test can clearly indicate drug use, but only if your workplace testing policy is legally compliant. Before implementing a workplace drug testing policy, consider these five points to avoid lawsuits.