Generally, yes; but the answer depends on the laws of your state.

Federal law allows drug testing of many federal employees such as those who handle classified information, those who work in national security, law enforcement officers, employees with duties to protect property, life, health and safety, and even the President.

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 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.

Most states allow employers to require job applicants to submit to drug testing, but some states limit an employer’s right to require current employees to take a drug test. Some states allow employers to test employees generally, but impose some restrictions — for example, that the employer may test only employees who work in certain safety-sensitive positions, employees who have been in workplace accidents, or employees whom the employer reasonably suspects of illegal drug use.

In other words, the rules vary from state to state. If in doubt, contact your state Labor Department or a lawyer in your area.

In Maryland, employers can require pre-employment applicants, employees and contractors to submit to drug testing for “legitimate business purposes.”

The procedures that must be followed in the testing are stated in Code of Maryland, Health-General Article, Section 17-214.

If there is a collective bargaining agreement, it supersedes this state law and controls the questions of whether, when and under what circumstances and procedures an employer can drug test.

Even when drug testing is lawful, employees and applicants may have legal claims based on how the test was conducted, who was tested, or how the results were used.

Here are some examples:

  1. Violation of state laws and procedures. Although an employer has the legal right to test, it must follow the state’s requirements. For example, a Maryland employee could challenge an employer who didn’t have a legitimate business reason to test or didn’t provide the documents required following a positive test result.

  2. Disability discrimination. An applicant or employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant’s medication was legally prescribed for a disability, the company could be liable.

  3. Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender – for drug testing could face a discrimination claim.

  4. Invasion of privacy. Even an employer that is allowed or required to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.

  5. Defamation. An employee might have a valid claim for defamation if an employer with reason to know that the test might not be accurate nonetheless publicizes that the employee tested positive. For example, if a retest showed that the first test was a false positive or the employee has appealed the first test, the employer may be liable for revealing the results of the positive test beyond those with a need to know.

Click here to return to the Law Talk page or here to go to our home page.

**This article is designed to provide helpful information that can be read within 2 minutes. It is neither a full explanation of this subject nor legal advice. To learn more, and to receive legal advice on which you can rely, contact me or another lawyer.