Dallas Employment Lawyer Blog
April 20th or “Four Twenty” just passed and whether you chose to celebrate by engaging in marijuana use (within the confines of state and federal guidelines) or you used the day to engage in civic discourse regarding the legalization of marijuana, the true question is: what happens on Four Twenty-One. The reason why the day after “Four Twenty” is so important is because of the general understanding that employees have a higher potential to engage in marijuana use the day before. This brings up the question of drug-testing in the workplace. The legality of drug testing employees remains a controversial issue, with some arguing that it is an invasion of privacy, while others maintain that it is necessary to ensure a safe and productive workplace. Generally, drug testing is legal, but like always there are certain guidelines and caveats that employees should be aware of when an employer announces or requires a drug test.
A good offense is a must when it comes to drug testing, that’s why it is an important first step to read up on the employer’s drug testing policy whether in the employee handbook, an online posting, or any new hire paperwork. The second step is understanding that an employer’s drug policy is not limitless because drug testing must still be conducted in a non-discriminatory manner. This means that employers cannot single out certain employees for drug testing based on their race, sex, age, disability, or other protected characteristics. An example of this would be if an employer announced a random drug test, but the “random” people chosen were all part of the same racial group. Thus, while an employer can legally drug-test its employees, there are limits to how the tests are conducted.
Part of learning about your employer’s drug policies is learning about what type of drug test is being administered. Some common tests include urine tests, blood tests, hair tests, and saliva tests, but each type of test has different detection windows, and some may be more accurate than others. If there are questions or concerns about the type or accuracy of a drug test, it is always best practices to email any concerns to human resources to create a record as well as to get answers directly from the source.
Another consideration when it comes to evaluating how drug testing functions in your workplace is to consider whether the testing is required by law or regulation. In some industries, such as transportation and healthcare, drug testing may be required by federal or state regulations. In these cases, the situation becomes tricky for employees because failure to drug test could be used as a reason for termination. This means that disclosing any or all over the counter and prescription medications that you may be taking becomes a necessity to avoid a false positive. In fact, some government agencies require drug testing as a prerequisite to employment.
Based on the above, it does not seem to leave a lot of options for employees to avoid drug testing though drug testing remains controversial. The controversy stems from the fact that drug testing is not always a reliable indicator of current drug use or impairment. Some drugs, like marijuana, can remain detectable in the body for days or weeks after use, even if the employee is no longer impaired. Additionally, drug tests may produce false positives, leading to unfair or incorrect conclusions about an employee’s drug use.
The landscape of drug testing in the workplace is not a new battlefield. The inaccuracies in tests, the potential to punish employees for off-work activity, and the potential for discrimination all support arguments against drug-testing. However, if there is a drug-testing policy it is important to be informed about how it works and what you may be required to do. That makes it easier to notice when an employer may be breaking the law, but a Dallas Employment Lawyer can help assess it, too.
“Drug Testing in the Workplace” outlined by the Texas Workforce Commission: https://efte.twc.texas.gov/drug_testing_in_the_workplace.html
Substance Abuse and Mental Health Services Administration: https://www.samhsa.gov/
Department of Transportation Office of Drug & Alcohol Policy & Compliance: https://www.transportation.gov/odapc