Some employers use drug testing to help maintain a safe, healthful, and productive work environment. Oftentimes, the rules and procedures related to drug testing generate questions related to when testing can be performed, under what circumstances, and what sort of actions can be taken pending test results. The following are 10 of the most common questions asked regarding drug testing:

Q: Are there guidelines for drug testing programs?

A: Unless otherwise subject to certain federal regulations, private employers generally have a fair amount of latitude in implementing drug testing programs. Federal agencies, on the other hand, must follow standardized procedures established by the Substance Abuse and Mental Health Services Administration (SAMHSA). While private employers are not required to follow these guidelines, it is considered a best practice to do so. The SAMHSA guidelines can be found here.

Q: What notices and forms are required for drug testing?

A: If drug testing is part of your pre-employment process, it is a best practice (and may even be required by state law) to provide a written notice of the intent to conduct drug testing at the time an individual applies for a job. Consent must also be obtained prior to conducting the drug test, including authorization for the employer to receive the results. In some states, employers may also be required to have a written policy on drug testing. If so, it is a best practice to post the company’s drug testing policy in a conspicuous location for both applicants and employees to view. In addition to obtaining authorization, it is recommended that a "chain-of-custody" form be used to document the handling and storage of a sample from the time it is collected until the time it is disposed.  This form links an individual to his or her sample and is written proof of all that happens to the specimen while at the collection site and the laboratory.

Q: Can we buy a urinalysis kit at the drugstore and administer the test ourselves?

A: For many reasons, it is NOT a best practice for employers to administer their own drug test. Not only is there greater risk that the specimen collection might be compromised, but the accuracy of the results is questionable. In addition, given privacy concerns, employers need to develop a system to protect the confidentiality of employee drug testing records, and designate a specific person who will receive the test results from the lab. A list of SAMHSA certified drug labs can be found here.

Q: Do I have to wait until after I have made an offer of employment before requiring the drug test?

A: Many employers feel that it would save them time and expense to test all applicants that they are considering interviewing and then only interview—or make an offer of employment—to someone who has passed a drug test. This is not a best practice and it may not be lawful in some states. Drug testing should occur only after a conditional offer of employment has been made. 

Q: Can I drug test an employee even though I don’t have a written drug testing policy?

A: Some states require employers to give individuals advance notice of their drug testing policies prior to conducting such tests. Even if your state doesn’t require such notice, it is a best practice to put a policy and procedure in place prior to conducting drug testing and ensure that the policy and procedures are uniformly applied and consistently enforced.

Q: What are the rules pertaining to random drug testing? What other options do I have?

A: While there is no federal law that prohibits random testing, there are several states that restrict or question an employer’s ability to randomly drug test employees who are not in safety-sensitive positions.  When administering random testing in states where it is permissible, employers must ensure that testing is performed pursuant to a documented policy and process. This type of testing must be conducted unannounced and on current employees in such a way that all eligible employees have an equal chance of being tested at any given time.

In addition to random drug testing, drug testing is generally conducted under the following conditions: pre-employment testing; post-accident testing; and reasonable suspicion testing. With post-accident testing, it is important to establish objective criteria that will trigger a post-accident test and how and by whom such tests will be determined and documented. When administering reasonable suspicion or "for cause" testing, it is extremely important to have clear, consistent definitions of what behavior justifies drug and alcohol testing and any suspicion should be corroborated by another supervisor or manager. For more information on the various types of testing, click here

Q: Can I drug test one group of employees but not another? 

A: Employers may impose a drug testing requirement on one category of employees versus another if the employees upon whom the requirement is imposed occupy safety-sensitive positions. Otherwise, it is NOT a best practice to selectively test one group of employees over another, as such testing may put an employer at risk of violating federal and state anti-discrimination laws.

Q: After I drug test a current employee, what do I "do with" the employee in question until I get a result back from the clinic?

A: Sometimes it can take one to two full days to get drug testing results back from a clinic. If the test was "random," then there should be no need to take any action with respect to the employee whose results you are waiting for. If the test was administered due to "reasonable suspicion" of impairment or post-accident, then an employer may want to consider suspending the employee with pay pending the results of the drug test. This determination should be handled with care; employers should consider consulting legal counsel for guidance.

Q: What if the employee refuses to test?

A: Generally, an employer can impose their own form of discipline on employees who refuse to take a drug test pursuant to the employer’s program, as long as such action is consistently applied. However you choose to address the issue, it should be clearly delineated within your drug testing policy.

Q: Can I make an applicant/employee pay for the costs involved in drug testing? Do I have to pay employees for the time spent taking a drug test?

A: There are certain states that specifically address this issue, and employers should familiarize themselves with their state requirements. For example, employers in New Jersey cannot make a candidate pay for his/her drug testing (or medical or other evaluations), unless the position they are applying for is that of a security guard. Even in states where there is no specific prohibition against charging candidates or employees for costs associated with drug testing, it is not a best practice to do so.

In general, the Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees for the time they spend going to and from mandatory drug tests and waiting for and undergoing these tests. The pay requirement applies regardless of whether the tests are scheduled during the employee's normal working hours. However, under the FLSA, employers generally are not required to pay candidates for the time spent undergoing pre-employment tests.

Conclusion:

Drug testing is only one component of a comprehensive drug-free workplace program, which typically includes a written policy that clearly outlines employer expectations regarding drug use, training for supervisors on the signs and symptoms of drug use and their role in enforcing the policy, education for employees about the dangers of drug use, and an Employee Assistance Program (EAP) to provide counseling and referral to employees struggling with substance abuse. It is a best practice to have a program in place before concerns related to drug use in the workplace present themselves.