Here’s the story… Becky is interviewing for a position as a sales associate at a nationwide clothing store that is located in the mall. She interviews well, has the right background, and gets the job. She isn’t required to take a UI but she does have work through a 90 probationary period to make sure she has her head on her shoulders. No problem; she performs well, shows up on time every day, and she breezes through her 90 days. After another successful quarter she is approached by the administrative level and asked to take a position as a manager. She would get better pay, vacation time, but would have to submit to a drug test on a quarterly basis. On top of that, there will be random UA’s throughout the year.She considers it, looks back on the paper work when she first took the job and found that the current position she held didn’t require drug testing and clearly saw in her new contract urine analysis clause.
Even though she is a stellar employee, with nothing to report on her background check, with outstanding marks in her sales performance… should she submit to four drug tests a year to get the other bonuses?
The answer varies most by state, then by company policy, and—to an extent, by the person applying for the job.
Requiring some kind of urine analysis (UA) is common practice among many company policies, and it’s not like everyone else isn’t already doing it– close to 80% of Fortune 500 companies require some kind of drug testing with their employees. Committing hours to the interviewing, training, and trusting an employee can be very wasteful when a month down the road that employee shows up with a substance abuse problem.
And just because the state doesn’t require a business to drug test, doesn’t make it illegal for that company to do it. What the company will have to do is have a policy in place that addresses their use of drug testing and what is permissible. Where it does become illegal, is when a company doesn’t have a policy, doesn’t have the employs read and sign it, and then tries to force and employee to take one under threat of job.
One way or the other, whether not you are required to take one will be determined by the industry you are entering and the regulatory policy of the business—be it a small or large business, but the first level of regulation comes from the state.
The place to read up on the specific laws of your state or territory in reference to drug testing is here which gives a state by state breakdown what you should know. For instance in Minnesota,
- The employer must provide a written drug and alcohol testing policy that is in compliance with the Authorized Drug and Alcohol Testing statute of the State of Minnesota. However, employers are not charged with a legal duty to require drug and alcohol testing to their employees as authorized by law.
- Employees have the right to refuse drug testing but are nevertheless subject to compliant employment action as per the employer’s policies. Refusal to undergo testing for chemical dependency does not make an employee ineligible to workers’ compensation or unemployment benefits.
- Apart from safety sensitive positions random drug testing may be performed only for professional athletes and only in accordance to any existing collective bargaining agreements applicable for said athlete if such agreement permits random testing.
- The costs of medical examination required by employers to their employees or applicants as a prerequisite or condition of employment is payable by the employer. In the case of a confirmed positive test and the employee requests for a confirmatory retest, which should be done within 5 days, the full cost of the retesting shall be at the employee’s expense.
- First time offenders must be given the opportunity to participate in an employee assistance program if provided by the employer or, as an alternative, a suitable drug or alcohol rehabilitation program at the employee’s expense.
- An employee who was previously diagnosed as chemically dependent or has failed to complete a treatment program or otherwise control the dependency may be discharged for employment misconduct. The employee would thereby be denied of his or her unemployment benefits.
Basically, it’s not required by state for business owners to drug test their employees, but if in their business policy it is required for that employee to undergo a UA to get the job, the business owner holds that right.
What happens if I refuse a drug test?
This will be a constant theme throughout, but because policy can widely differ, consult the contract and rules/regulations of the business. Likely, refusing a drug test will not bold well, but it also doesn’t disqualify the employee from workers compensation or government assistance.
If the employee is a previously diagnosed as chemically dependent and refuses (in MN), then if the result is a termination, at that point the employee can be denied unemployment benefits.
Like it said for Minnesota, there are groups that are often required by structured bargaining agreements for athletes and other safety related positions, which require a participant to submit to a random urinary analysis.
Safety related positions would include governmental jobs like the Department of Transportation, mechanics at your local Ford dealer, or other positions which require the use of heavy machinery or motor vehicles that would endanger the lives of others if not handled by professionals who understand the importance of not being under the influence at work.
But… (in MN), that’s it. The pet store down the road or the barber on the other side of the street, because they are not under a particular collective bargaining agreement nor under the umbrella of safety related position, it is not legal to require random drug testing.
What if I get test positive for banned substances?
Again, this can differ from state to state, but when an employee fails to pass a drug test, that does not necessarily mean her or she is instantly fired; in fact, like most substance abuse cases, for a first time offender, there will be treatment options that are required to be completed in lieu of termination. Likely, the employee will be required to pay for expenses out of pocket, but that’s better than losing ones job.
If there is a false positive, five days later the company can retest and in the event of another positive, the cost of the test will be at the employees expense. In the event of a false positive and a re-test, the COMPANY will be held to cover the expense.
What if the state I reside in decriminalized Marijuana?
With the sophistication of drug testing growing by the day, there are tests available that can detect how long a substance has been inside of the human body. If the state decriminalized cannabis, a company can decide whether or not that should be treated as a banned substance with their drug testing. But because drug tests have become so easy to use and available, it wouldn’t be uncommon to see stipulations of when and how much a substance can be the body.
Ex. Packaging Inc. allows for marijuana to be someone system, as long as it isn’t in his or her system while they are at work. Jon smokes a joint when he gets home from work on Friday. He doesn’t smoke any more throughout the weekend. On Monday Jon comes in and is tested. Because it was clear there wasn’t any foreign substance in his system over the last two days, he is in the clear. But if he showed any amount in the last few hours, it would be obvious he was under the influence whilst at work.
What should Becky do?
It comes down to what’s important to her. Despite the breach on her rights (in her opinion), would the perks of the new job be worth it? The best thing anyone can do is be upfront and honest with an employer from the start, read everything very clearly, and ask a multitude of questions. But because she already knows the parameters of her new job and the policy the company has in place, there isn’t much to fight or argue about. It doesn’t really matter if she sells a million dollars a day and becomes their best employee, what’s in the rule book are indeed the rules. The one thing she can oppose is the use of random drug tests. As important it is to remain safe during the selling of clothing, one could hardly put that into the category of safety sensitive position.
Categories: Job Seekers and Employees