Drug testing is a common practice in the workforce, with applications and existing employees often being subject to tests. However, just because something is the standard or norm, doesn't mean that an abuse of power cannot exist. Companies are restricted to a certain set of laws and guidelines when it comes to the testing process. When the organization bypasses these guidelines, their actions could be considered a violation of the law.
Notice of Testing
First and foremost, the requirement for drug testing, whether it be a job applicant, or an employee must be well documented and made available to the individual well before the testing process begins. Examples of this notice would include a statement on a job application or one within a hiring packet or employee guidebook.
If you suspect that you are being tested unfairly, it's a good idea you read over these documents to see if you just might have initially missed the warning. However, if the information is not there, an employer cannot force you to have the test performed, nor can they legally terminate your employment because of your refusal.
Employers cannot just randomly select a laboratory to process the test results. Since states typically mandate the laws concerning employment-related drug tests, they also require that employers only use a laboratory that has been certified by the state. If the laboratory does not have this certification, an employee can argue that the results of the test are not verifiable, and the test, and its results, could be considered invalid.
The certified laboratory must also administer the same test for each person applying for the same position. For example, all cashier applicants would have to take the same test. You can't single out one employee for more in-depth testing.
When it comes to drug tests for current employees, some state laws require the employer to have a testing standard in place. This standard generally involves two options. The first option is that every member of a set department must be subjected to the testing at the same time if it is random. You cannot single out an employee in the department for testing, as this could be a violation.
The second option allows for the testing of an individual employee, but only when an incident occurs within the workplace that prompts concern, such as an accident. An employer can then subject the employee to drug testing to determine if drug use was to blame for the incident.
If you suspect your employer has violated your rights concerning a drug test, speak with an employee rights attorney to discuss your situation to determine what you should do next.