Texas Employees Enjoy Certain Protections Against Employer Required Drug Tests

Many Texas employers require potential applicants and current employees to submit to drug testing. Federal and Texas laws permit private employers to adopt and implement broad drug and alcohol testing policies for their employers, with minimal limitations. However, according to the Texas Workforce Commission (TWC), government employers must show a compelling justification for drug testing.

The consequences of a failed drug test can be life-altering for an applicant or employee. In some cases, employers will provide rehabilitation services, but more commonly, employers will refuse to hire a potential applicant or terminate an employee. Additionally, employers are allowed to release the test results to the TWC, and this can affect a person’s unemployment compensation. Employees who believe their employer impermissibly drug tested them may have some legal protections.

Most employers should provide their employees with a written drug testing policy that outlines what results will be a violation, which employees require drug testing, and what measures will be taken after a violation. Unfortunately, Texas employers can fire employees that refuse to sign an acknowledgment of the drug testing policy. However, employers need to provide the employee with a warning that there is a risk of termination if they fail to sign the policy. Additionally, the policy needs to be enforced in a non-discriminatory manner.

There are a variety of laws designed to protect the rights of workers in the United States. The Americans with Disabilities Act of 1990 (ADA), The Civil Rights Act of 1964, the Family and Medical Leave Act of 1993 (FMLA), and the National Labor Acts of 1935, provide limitations on what an employer can do in regard to drug testing their employees.

The two primary protections employees will typically assert in these cases are protections under the ADA and FMLA. The ADA allows employers to adopt and implement drug-free policies but makes it illegal for certain employers to discriminate against employees who are recovering drug and alcohol users and have sought treatment. Employers cannot take adverse employment actions against an employee because they have a history of substance abuse or are in treatment. Further, employers cannot pick and choose who is drug tested based on their appearance. Moreover, employers may violate the ADA if they ask potential employees about their legal prescription drug use. The FMLA permits employees to use their leave to address substance abuse disorders. In these instances, certain employers cannot discriminate or retaliate against an employee because they are seeking treatment for their addiction.

Has Your Texas Employer Impermissibly Required You to Take a Drug Test?

If you believe your employer is engaging in illegal employment practices, you should contact the attorneys at Rob Wiley, P.C. at 214-528-6500 to schedule a consultation with one of our Dallas employment lawyers.

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