person in scrubs holding specimen cup
There are several rules and regulations behind workplace drug testing, and employers must be aware of employees' rights and common mistakes to avoid. — Getty Images/nndanko

Drug testing is a common part of background checks on prospective employees. However, not all employees are subject to screenings. If you’re an employer and unsure of whether you should — or even can — drug test candidates and employees of your business, you’ll want to know your rights as an employer as well as your employees’ rights.

Am I required to drug test my employees?

According to SAMHSA, employees in “law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of public trust” are required to undergo drug testing. This involves safety-sensitive industries like transportation, defense, hospitals, schools and universities, and any federal, state and county applicants.

Private employers, on the other hand, are not typically required to test for drugs. However, if necessary, they may choose to do so anyway, contingent on their state’s drug testing laws.

[Read: 5 HR Compliance Trends Your Small Business Needs to Watch in 2019]

Drug testing job applicants

In most cases, you have the right to test any applicant of your business for drugs. However, you’ll want to adhere to the laws in your state. Some requirements might include:

  • Alerting the applicant of testing as part of the screening process for new employees.
  • Testing only employees who have already been offered the job (contingent on passing a drug test).
  • Testing all applicants similarly.
  • Ensuring a state-certified laboratory administers testing.

If you plan on testing your job candidates, include the information in your application by asking whether an applicant would be willing to undergo testing.

Drug testing current employees

If you’d like to drug test your current employees, you’ll have to be more careful. Some states do not allow blanket or random testing of existing workers in a private company. In many cases, you must have a reason for your screening, such as disruptive behavior or safety concerns for high-risk jobs. You should immediately test employees after an accident or incident that might have been caused by drug use.

[Read: How Can I Hire for a Successful Culture?]

Despite attempting to follow all rules and regulations associated with drug testing, you might run into complications in the process.

Can an employee refuse a workplace drug test?

Employees have the right to refuse a drug test. However, in many cases, you might use their refusal as grounds for termination with little or no recourse (and possibly even deny them unemployment benefits).

To challenge an uncooperative employee, provide your reasons for prompting the drug screening and treat the situation as you have with similar cases. In doing so, be sure to comply with all state laws.

Common mistakes employers make when conducting drug tests

Despite attempting to follow all rules and regulations associated with drug testing, you might run into complications in the process. Here are a few common mistakes employers make:

Forgoing a written policy or having a vague policy

It’s important you create a screening policy that explains all drug testing matters and complies with state, local and industry regulations. These details include types of testing required, types of prohibited conduct and consequences for refused or positive tests.

Applying DOT requirements to all employees

The U.S. Department of Transportation’s (DOT) requirements only apply to DOT-regulated employees. Applying these regulations to your non-DOT-regulated employees can get you into serious legal trouble.

Failing to conduct reasonable suspicion tests

If you have reason to believe an employee is under the influence on the job, do not let it slide. Doing so can not only lead to legal complications, but it can also put your business and its workers at risk.

Accepting basic excuses rather than testing

Don’t be quick to trust an employee’s excuses. It’s always better to play it safe and test for concrete evidence.

Applying inconsistent consequences for positive test results

If you outline consequences, make sure you follow through on them.

In most cases, as an employer, you have the right to test your workers. However, be sure to learn your state laws so you can ensure a smooth and simple process for your business.

CO— aims to bring you inspiration from leading respected experts. However, before making any business decision, you should consult a professional who can advise you based on your individual situation.

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Published January 29, 2020