Written by attorney Scott M. Behren

Can My Employer Drug Test Me?

The majority of employers across the United States are NOT required to drug test and many state and local governments have statutes that limit or prohibit workplace testing, unless required by state or Federal regulations for certain jobs. Also, drug testing is NOT required under the Drug-Free Workplace Act of 1988. On the other hand, most private employers have the right to test for a wide variety of substances. However, your employer must comply with state and federal guidelines in setting up drug testing programs.

Federal Agencies

If you work for a Federal Agency, Federal agencies conducting drug testing must follow standardized procedures established by the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services. These Mandatory Guidelines for Federal Workplace Drug Testing include having a Medical Review Officer (MRO) evaluate tests. They also identify the five substances (amphetamines, cannabinoids, cocaine, opiates and phencyclidine) tested for in Federal drug-testing programs and require the use of drug labs certified by SAMHSA.

Private Sector

The current law in the private sector generally permits non-union companies to require applicants and/or employees to take drug tests. In unionized workforces, the implementation of testing programs must be negotiated so if you are a member of a union that has not agreed for its employees to be drug tested, speak to your union representative.

Again, this body of law also varies based upon your state and local governments.


However, in Florida, where my office is located, drug testing is addressed in Florida Statutes 440.101 and 440.102. In Section 440.101, the State of Florida indicates that it wishes to promote drug free workplaces. The statute further provides that in the event an employer institutes a drug free workplace including notice, education, and procedural requirements regulated by the Agency for Health Care Administration, than the employer may require employees to test for drugs and/or alcohol. As part of a drug free workplace, the employer must notify the employees that it is a condition of employment for an employee to refrain from reporting to work or working with drugs or alcohol in their system.

Section 440.102 sets forth the required procedures that must be taken for confidentiality and the drug testing standards for laboratories. In accordance with this statute the employer must give all employees and applicants for employment a written policy statement on drug testing which must contain certain items set forth in the statute. In addition, if an employer that does not have a policy, chooses to start one, it must give employees at least 60 days notice of this policy change.

So long as the employer follows the very lengthy requirements of this statute, an employer may fire an employee or refuse to hire an applicant who has failed a drug test. In addition, since such a termination of employment would be "for cause" an employee could forfeit his/her rights to workers compensation and unemployment benefits. In addition, if the employer follows all of these guidelines, and an employee refuses to submit to a drug test, the employee can be fired and the job applicant can be refused hire.

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