How can employers avoid lawsuits over workplace drug testing?

Congress implemented the Drug-Free Workplace Act in 1988. Owners of private businesses in Louisiana likely know that the act only applies to federal employees. But after the federal legislation was passed, many states implemented their own laws for drug-free workplaces. Drug testing may be required for a range of positions, including medical positions, security jobs, physically demanding jobs, or situations in which employees operate potentially dangerous machinery.

Employment law that addresses drug testing involves a number of constitutional issues. Employee drug testing must meet the “reasonableness” requirement of the Fourth Amendment of the Constitution. And litigation that arises out of employee termination based on drug test results may invoke the due process set out in the Fifth Amendment. In addition, an employee who is fired because of a drug test may raise concerns about test notification, ask for the right to respond or even challenge the test results.

Employers who are considering implementing drug testing in the workplace should familiarize themselves with the relevant laws, both state and federal.

Drug testing is generally legal where there are safety risks involved in the job, such as in the case of an airline pilot or with jobs that require operating heavy machinery. Furthermore, if an employer has physical evidence that suggests an employee’s illicit drug use, a drug test is generally acceptable. Lastly, if the employee is involved in a drug-related accident, an employer may be able to test that worker for drug use.

Business owners in Louisiana should carefully formulate their drug testing policies, as well as ensure that workers understand the policy and sign off on the written version. It is also important to obtain each employee’s consent before testing, and it may be a good idea to test all employees across the board and not just one.

Source: The Washington Times, “Workplace drug testing,” Paul Samakow, May 29, 2012