Drug Testing

The federal Drug-Free Workplace Act of 1988, 41 U.S.C. 701-707, covers the following employers:

• companies with federal contracts worth at least $25,000;
• individuals with any federal contracts; and
• businesses or individuals receiving federal grants of any amount.

Covered employers have to make a "good faith effort" to have a drug-free workplace. This usually means drug testing, although that's not expressly required by the law.

Covered employers must publish and distribute a drug policy that prohibits drug use. They also have to institute a drug awareness program and give employees information on counseling, legal penalties, and rehabilitation opportunities. In addition, employers covered by the Act must have a workplace policy requiring employees to report drug convictions, and must report convictions to the federal government. An employer can lose or be disqualified from federal contracts for failing to comply with the Act.

The government can test its employees when they are involved in handling sensitive information, or where they are part of law enforcement. If your employer does business with the following agencies, you will probably be required to take a drug test:

The Department of Transportation

The Federal Aviation Agency

The Federal Highway Administration

The Federal Railroad Administration

The Nuclear Regulatory Commission

The Department of Defense

The Coast Guard

The Department of Transportation requires drug tests for employees of many *private* transportation companies. The rules cover employees involved in safety or security, including airplane pilots, flight attendants, mechanics, airport security screening personnel, flight engineers and aircraft dispatchers, truck drivers, bus drivers, railroad employees, mass transit employees, seamen, and pipeline employees. The required drug tests include:

1. Random tests.
2. Pre-employment tests.
3. Periodic testing.
4. Testing where "reasonable cause" exists to believe an employee is using drugs.
5. Testing for drugs after an accident.

In a union workplace, an employer cannot unilaterally impose drug testing. This is a term of employment, requiring collective bargaining.

In addition to these federal laws, there are many states which have laws governing drug testing. The provisions of these laws vary widely, and can include:

1. Requiring employers to post or publish their drug testing policy.
2. Licensing of laboratories.
3. Mandatory double-checking of test results.
4. Requiring a hearing and appeal process to allow employees to explain or independently confirm test results.
5. Requiring counseling rather than termination on a first time positive drug test
6. Requiring confidentiality for test results.

Not all states have all these provisions; some have not chosen to enact any of them.

Copyright 1996 David Trieloff, Esq.

Mr. Trieloff passed away on April 16th, 1998 and is sadly missed by the staff of the Business Know-How where he was a member of the volunteer staff.