Law Office of Nancy Grim

Northeast Ohio Employment Attorney

Nancy Grim, LLC
P.O. Box 108
Kent, Ohio 44240-9998
Phone: (330) 678-6595
Fax: (844) 270-7608

Drug Testing


Many employers require their employees to submit to drug testing both before and after being hired. Most of the time after being hired an employer requires reasonable suspicion before having an employee take a drug test. Even with the recent legalization of marijuana in some states, employees in those states can still be punished for testing positive. The punishments for a failed drug test can include rehabilitation, termination, and losing unemployment benefits. To learn more about drug testing and the workplace, read below:

1. Can my employer legally require me to take a drug test?

Yes. Federal, state and private employees are all subject to drug testing.

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 are subject to drug testing Executive Order 12,564 (5 U.S.C. %26sect; 7301). The Supreme Court has ruled that while drug testing does infringe on an employee’s privacy, it may be necessary in order to protect the health and safety of others Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989). Most state laws are similar to federal laws and generally maintain the legality of drug testing for state employees.

Many private employers require that their employees undergo drug testing. State and local laws vary in the way that they protect private employees’ privacy. In many states and localities, private employers may test employees for health and safety reasons, to increase productivity in the workplace, or to prevent illegal activities in the workplace that derive from drug-related activity Finkin, Privacy in Employment Law (1995) pg 19.

State Law Information

Philadelphia, Pennsylvania. Philadelphia ordinance “Prohibition on Testing for Marijuana as a Condition for Employment,” states that in the City of Philadelphia it “shall be an unlawful employment practice for an employer, labor organization, employment agency or agent thereof” to require a prospective employee to submit to pre-employment marijuana testing as a condition of employment. The ordinance does not address marijuana testing with respect to current employees, and it does not prohibit an employer from disciplining an employee for being under the influence of marijuana while working or possessing marijuana in the workplace.

back to top

2. Can I be tested and fired for marijuana in a state where it’s legal?

There are currently no restrictions under the law that limit an employer’s ability to drug test for Marijuana. Additionally, employers in all 50 states do not have to accommodate any employee who is working “under the influence” or using marijuana while on-duty. However, there are some states that require an employer to accommodate off-duty use of marijuana.

The following is a comprehensive list of the states with explicit employee protections, states with no employee protections, states likely providing no employee protections, and states with unclear protections.

States with explicit employee protections
The following eleven states have statutes with explicit language either through anti-discrimination or reasonable accommodation provisions, providing varying levels of employment protection. These laws generally state that an employer cannot fire an employee based on the employee’s status as a medical marijuana cardholder or participation in a marijuana program. However, some states, such as Arizona, Delaware, and Minnesota, explicitly address drug testing and state that a positive drug test alone cannot automatically be a reason to refuse to hire someone or to fire someone. Maine goes one step further and requires employers to stop drug testing job applicants for marijuana use and also prevents employers from firing workers 21 years or older for the use of marijuana outside of the workplace.

  • Arizona
  • Arkansas
  • Connecticut
  • Delaware
  • Illinois
  • Maine
  • Minnesota
  • Nevada
  • New York
  • Pennsylvania
  • Rhode Island

States with no employee protections
The following seven states, either the medical marijuana statute explicitly provides no protections or the statute is silent, and the state has case law that has found no employee protection for off-duty use of marijuana. An example is Ohio’s medical marijuana law, enacted in 2016, which explicitly provides that employers have the right to establish and enforce zero-tolerance drug testing policies. However, California is now pending legislation that will stop employers from discriminating against employees who are medical marijuana patients.

  • California
  • Colorado
  • Michigan
  • Montana
  • Ohio
  • Oregon
  • Washington

States likely providing no employee protections
The following seven states and the District of Columbia have state marijuana laws that are silent regarding an employee’s protections and generally only provide criminal protections.

  • Alaska
  • Hawaii
  • Maryland
  • Massachusetts
  • New Hampshire
  • New Mexico
  • Vermont
  • Washington, D.C.

States with unclear employee protections
The following four states have marijuana laws that are either silent or vague regarding employee protections, and their state regulatory agencies have not provided guidance on employee protections.

  • Florida
  • Louisiana
  • New Jersey
  • North Dakota

Due to the rapidly changing nature of this area of law, and the differences between states, it is best to seek advice from an attorney in your area if you have questions or concerns.

back to top

3. How do I know if marijuana is legal in my state?

The laws surrounding marijuana are changing rapidly, with most states either legalizing it in some form, or considering legislation on the issue. A running list of states and their stance on marijuana can be found on Wikipedia. Be careful to note the differences in state laws. For example, some states have only decriminalized marijuana instead of fully or partially legalizing it. Other state have legalized marijuana, but only for medical usage. Furthermore, there can be many significant but small differences between state laws, and it is best to seek advice from an attorney in your area if you have questions or concerns.

back to top

4. Can I be fired for taking prescription medication under doctor’s orders if it shows up on a drug test?

You may be protected by the Americans with Disabilities Act (ADA). Under the ADA, an employer cannot discriminate based on disability. However, if over time the disability no longer exists, if the medication is interfering with your ability to perform essential job functions with reasonable accommodations, or if you are taking the medication illegally, then you can be fired.

For more information on disabilities and the workplace, such as what is considered a disability and what constitutes an essential job function, please visit our disability discrimination page.

back to top

5. I’m applying for a job, and my employer wants to give me a drug test. Is that legal?

Yes. In most cases, an employee seeking first-time employment can be tested as a condition of employment, even if there is no cause or reason to believe that the prospective employee has been taking drugs. The employer, however, must test all incoming employees for drugs and may not single you out for special treatment.

Some states have imposed limitations on pre-employment drug testing. For example, California allows a drug test only after the applicant has received an offer of employment conditioned on passing the test. In other states, employers that drug test are required to provide written notice or indicate in their job postings that testing is required.

back to top

6. My employer has a policy that I can be tested if he/she has “reasonable suspicion” that I am taking drugs. Is that legal?

Yes. Just like incoming applicants can be tested for drugs, so can existing employees. The only difference is, in most cases, your employer must have reasonable suspicion that you have been taking drugs before you can be tested.

back to top

7. What does having a “reasonable suspicion” to test for drugs mean?

Reasonable suspicion means that the employer has a legitimate reason, based on logic and facts, to believe that you have been taking drugs, and isn’t just guessing, speculating or discriminating against you. Reasonable suspicion can be different in different circumstances. Examples of reasonable suspicion include but are not limited to:

Direct observation of drug use or physical symptoms of drug use (slurred speech, uncoordinated movement, etc.)

Abnormal conduct

A report from a reliable source that an employee is using drugs

Evidence that an employee has tampered with his/her drug results

Erratic behavior while at work or significant deterioration in work performance

Evidence that the employee has used, possessed, sold, solicited, or transferred drugs while working or at work

back to top

8. Can my employer randomly test me for drugs without having reasonable suspicion?

It depends. Many states require that there must be reasonable suspicion to test an employee, and employers that have not complied with this requirement have been successfully sued. However, state laws vary, and in some states, private employers are permitted to randomly test their employees, even without reasonable suspicion, as long as advance notice is given Finkin, <i>Privacy in Employment Law</i> (1995)” data-ezsrc=”images/scales.gif” /></a>. Courts have generally held that no suspicion is needed to randomly test current employees in jobs that pose a serious risk of human injury or property damage.</p>
<p class=back to top

9. I was involved in an accident, and my employer wants me to undergo a drug test, is that legal?

Yes. Federal law permits employers to test for drugs during accident investigations. Although state laws vary, in most states, it is legal to test employees for drugs following a workplace accident. Because your employer may be held liable for injuries or damage caused as a result of your accident at work, the law allows the employer to drug test you to find out if the accident was a result of your prohibited conduct, thereby protecting the employer from liability. However, employers must establish a “reasonable procedure” that allows for employees to report work related injuries, accidents and illnesses. Under this standard, requirements for post-accident drug or alcohol testing will face scrutiny under OSHA because these types of tests may deter employees from reporting an accident. If OSHA finds that the employer’s drug and alcohol testing policies for post-accident reports deters employees from reporting the accident, the employer will face fines up to $12,471.00 per violation, or $124,712 for willful violations.

back to top

10. I’m involved in a counseling or rehabilitation program for drug use through an employee assistance program (EAP). Can my employer still test me for drugs?

Yes. Even though you are undergoing rehabilitation, your employer still has the right to test you for drugs to make sure that you are complying with the program Executive Order 12,564 (5 U.S.C. %26sect;7301.

back to top

11. How do employers test for drugs?

Urine is the most common specimen used to test for drugs, but blood, breath, or other specimens can be used as well. Hair may also be used to test for drugs. Hair testing is growing in popularity and has been accepted by courts as a permissible way to test for drugs. Drug residue remains in hair for a much longer period of time than it does in urine or blood.

back to top

12. My employer wants me to undergo a drug test and requires that someone watch me while I urinate. Is that legal?

Usually not. Some courts have found it to be an unfair invasion of privacy to watch employees urinate. However, most courts have held that it is reasonable to enforce other safeguards that protect against tampering with urine specimens. Examples include: listening to an employee urinate, the dying of toilet water, requiring employees to wear hospital gowns, and checking the temperature of urine.

back to top

13. If I test positive on a drug test, what kind of action can my employer take?

If you are a federal employee, Executive Order 12,564 requires that action be taken if you test positive for a drug test Executive Order 12,564 (5 U.S.C. %26sect;7301). You will be referred to an employee assistance program (EAP), and you must comply with the program’s rules and cease future drug use, or else you will be subject to termination.

State and private employers have their own policies if you test positive for drugs, and these often include mandatory rehabilitation, firing, or not being hired for the position in the first place. While some employers choose to do so, a private employer is not required to allow you to complete rehabilitation or give you a second chance before firing you for drug use.

back to top

14. Can I refuse to take a drug test?

You can always refuse a drug test. However, as an applicant you may not be hired as a result of not taking the drug test. As an employee, if you are fired because of your refusal to take the test, you may have little recourse. In fact, in some states, you might be denied unemployment benefits if you are fired for refusing to take a drug test.

back to top

15. Can I lose my unemployment benefits for failing a drug test or refusing to take one?

It depends on the state, but generally if the state allows for drug testing they can deny unemployment benefits for a failed or refused drug test. Some states do allow you to get your benefits if you are still unemployed after a set period of time.

back to top

16. I’ve been called in on short notice and I’m afraid I won’t pass the drug test. How long will drugs stay in my system?

The amount of time a drug can be detected in your system varies widely not only between drugs but between people. Some drugs leave the system within a few hours while others can be detected for weeks after entering your system, like THC from marijuana by a frequent user.

back to top

17. I tested positive for marijuana use and my employer wants to fire me, but I know that other employees also tested positive but weren’t fired. What can I do?

Although employers are not necessarily required to treat their employees fairly and equally, the failure to do so may subject your employer to a discrimination lawsuit if certain types of employees are treated differently. Check with your state department of labor, or a private attorney, for more information to help you determine whether you may be able to bring a discrimination case. If you are a member of a union, you also may be able to file a grievance over your termination.

back to top

18. I tested positive for drugs but I think the test was inaccurate. Can I challenge the accuracy of the test?

State laws vary as to what action you can take. However, there are some methods of recourse that may help you challenge the results. If you are a member of a union, you may be able to file a grievance over your termination that challenges the accuracy of the test. You may check with your state department of labor, a private attorney, or contact one of the following advocates for help and information:

back to top