Applying and interviewing for a job can be a harrowing process, but before you are hired you may be asked to complete another task: taking a drug test. While an applicant may accept the possibility that employers may choose to do this, but is the process actually legal?
Are There Federal and State Drug Testing Laws?
When it comes to federal laws, there are few limits for employer drug testing. Unless the company works in a safety-centric industry like commercial truck and transport drivers, the Department of Defense, aviation, NASA contractors or transportation, federal laws do not require or prohibit drug tests. This is the province of state and local laws, and many do have ones that regulate or restrict employers’ rights to require the testing.
Pennsylvania does not have any laws that apply to drug testing for private employers unless it violates other laws. Drug testing is not usually illegal, whether it is done pre-employment, if there is reasonable suspicion that an employee is under the influence, for other mitigating circumstances, or when it is done at random. The testing may be done through blood, hair, or urine samples, and there are no regulations as to the kinds of substances that can be tested for.
In Philadelphia, a new city ordinance prohibiting pre-employment marijuana drug testing took effect earlier this year. Under the ordinance, employers, labor organizations, employment agencies, or related agents can no longer legally require prospective employees to submit to pre-employment marijuana-screening as a condition of employment. The same does not apply to current employees, however, nor prohibits the employer from disciplinary actions for employees in the possession, or under the influence, of marijuana during work hours.
Employment positions that have a direct impact on the health and safety of others are exempt from Philadelphia’s ban on pre-employment marijuana screening, including:
- Law enforcement officers and positions
- Employment positions requiring commercial driver’s licenses
- Job positions requiring supervision of medical patients, disabled, children, or other vulnerable individuals
The city ordinance further states that employers must continue pre-employment marijuana screening if required by a federal or state regulation, statute, or order, a federal contract requirement, or if specified as part of a valid collective bargaining agreement.
What if My Drug Test Was Illegal?
Even though the state does not limit workplace drug testing, employees may still have recourse if they feel that a test was illegal. One reason to support this theory could be disability discrimination. According to the Americans with Disabilities Act (ACA), applicants and employees who are taking medications for disabilities may be exempt from positive results: some drugs that are illegal when not legitimately prescribed by a physician may be necessary for disabled individuals. If an applicant’s medication was legally prescribed for their disability and the employer turned them down for a positive drug test, that company might be held liable. This does not apply if the drug in question is marijuana.
Another reason to claim that an employer carried out illegal drug testing is defamation. This could occur if the result was a false positive and the employer acted in bad faith, and was aware/should have been aware that the test results were wrong. Invasion of privacy another possible claim; this can happen when employers violate an applicant’s or employee’s privacy by conducting the test in inappropriate or embarrassing circumstances, like having to provide a sample in front of other workers.
Applicants and employees who believe they were singled out for drug testing can also challenge potential and current employers for discrimination. Companies cannot single out specific groups of employees (by gender, race, religion, age, and other protected categories) for drug testing, and doing so could lead to a discrimination claim.
Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Applicants and Employees Who are Treated Unjustly
If you think that an employer has treated you unfairly with a drug test, our experienced Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. may be able to help. For a confidential consultation, complete our online form or call us at 215-574-0600. We are located in Philadelphia and serve clients throughout Pennsylvania and New Jersey.