Use of Drug and Alcohol Tests in the Workplace

To follow up our article regarding the use of lie-detector or polygraph examinations in the workplace, we now examine another form of workplace testing that can create liability issues for Maryland, Virginia, and D.C. employers: drug and alcohol testing.

Whether you are an employer thinking of instituting a drug-testing policy or an employee who may be subject to drug screening, it’s important that you know your rights and obligations under federal and state law. Having knowledge of the pertinent laws and regulations can prevent an employer from exposing itself to liability, and can keep an employee from being unnecessarily denied a business opportunity.

Federal law neither requires nor entirely prohibits the administration of drug tests in the work place. Most restrictions that an employer will encounter will be due to more-restrictive state laws which often set out the procedures for giving drug tests and the manner in which any information gained from a test may be used.

Do I have to take a drug test given by an employer?
Consent is always required for an employee drug or alcohol test, and you may always refuse. However, an applicant may not be hired, and an employee may be terminated or punished, for refusing or failing it.

Can I be punished for refusing or failing a drug test given by an employer?
The answer depends on whether you work in the private sector or for federal, state, or local government. Note that there are no criminal or civil legal consequences to failing an employer’s drug test. If an employer finds out than an employee has failed the test, the employee cannot be prosecuted or cited, as it is not a crime to fail an employer-provided drug or alcohol test.

State and Federal employees: A state or federal employer must comport with the requirements of the Fourth Amendment regarding the protection of the privacy and bodily integrity of its employees. However, these requirements are fairly limited and allow testing where (1) testing is “reasonable” after considering the needs of government and the privacy of the individual or (2) the test is given in accordance with an existing “special needs” exception, which includes ensuring non-impairment of transportation-related employees, those who handle controlled substances, and, likely, those who work with confidential national security information. “Reasonableness” is a context-specific standard, and an employer does not require probable cause or even individualized suspicion in order to administer a test.

Private employees: In most states, courts have ruled that the employment-at-will doctrine outweighs employees’ privacy rights. Private employees therefore may be required to take a drug test mandated by their employer as a condition of employment, and may be subject to discipline or termination for failing such a test.

Can I be punished for “cheating” on an employee drug test?
Yes – if you are in Virginia or Maryland. Both states prohibit the attempt to alter or substitute a bodily fluid sample. Each state also prohibits the intentional sale, use, or transport of urine or other sample adulterants for the purpose of defeating a drug or alcohol screening test.

  • Maryland: A violation is a misdemeanor and can lead to a fine of up to $1,000 and/or up to one year imprisonment. Md. Code Ann., Crim. Law Art., § 10-111.

  • Virginia: A violation is a Class 1 misdemeanor and can lead to a fine of up to $2,500 and/or up to one year imprisonment, as well as a suspension of a commercial drivers license for one year. Va. Code Ann. § 18.2-251.4.

State Drug Testing Laws
As a reminder, federal legislation sets the minimum rights guaranteed to an employee, but state legislation is not preempted if it goes further and gives additional protections to employees.

The following laws only apply to employers and are not applicable if a person is under arrest, is imprisoned, or otherwise held by a law enforcement agency or official. The descriptions below are summaries of the cited legislation and do not purport to describe the law in its entirety.

District of ColumbiaD.C. Code Ann. §§ 1-620.32 to 1-620.37

  • D.C. has no laws regarding drug testing by private employers.
  • Public-sector employees: Employees of the District may be individually tested if they are subject to a “reasonable suspicion referral” or have been involved in an accident where impairment may be at issue. Employees may be randomly selected for drug and alcohol screening if they are vehicle operators, employees of Human Services and Mental Health Services, Department of Corrections staff, or are responsible for working with children. Private contractors in one of the above-described capacities may also be tested.

  • Notice: The D.C. government must give a 30 day notice before implementing a new program, and no employee can be tested without having received such notice.

  • Lab requirements: A D.C.-certified laboratory must be used for any government testing.

  • Maryland – Md. Code Ann., Health-Gen. Section 17-214

  • Drug and alcohol tests may only be given for a legitimate job-related reason.

  • Lab requirements: Any specimens taken must be tested by a laboratory with a valid state permit or out-of-state certification. The employer must give the subject of the test both the name and address of the laboratory to be used.

  • Preliminary screening procedures (portable tests that can be administered on-site and meet FDA requirements) may be used to screen job applicants or current employees, however confirmation of a positive result by an approved laboratory is required.

  • Positive results: An employer must provide to the tested person (1) a copy of the laboratory test results; (2) a copy of the employer’s written drug-use policy; (3) if applicable, a written notice of intent to discipline or terminate the person based on the results; and (4) a statement informing the person of the right to request independent testing of the same sample.

  • Confidentiality: Specimens collected on-site must be stored in a way that preserves the specimen-owner’s identity and protects his or her confidentiality. Employers must maintain a chain-of-custody record. A lab cannot inform an employer regarding a subject’s use of nonprescription drugs. An employer may be informed about prescription drug use if the subject cannot verify that he or she was prescribed that drug.

  • Liability: An employer who breaches § 17-214 is guilty of a misdemeanor and may be subject to a fine not exceeding $100 for the first offense and $500 for each subsequent conviction. Each day a violation is continued after initial conviction is a subsequent offense.

Virginia – VA Code Ann. § 22.1-178, §65.2-813.2

  • Virginia has no widely-applicable laws regarding drug testing by private employers.

  • Worker’s compensation discount: Every worker’s compensation insurer shall provide a premium discount of up to five percent to every employer instituting and maintaining a drug-free workplace program.

  • Specific professions susceptible to testing by law:

  • Commonwealth school bus drivers may be required to submit to drug and alcohol testing conducted in compliance with Board of Education regulations.

  • Mine workers may be subjected to drug and alcohol testing conducted by a Virginia-certified laboratory.

Notice to Employers
Not all employers should conduct drug or alcohol testing simply because they are legally permitted to do so. A company should administer such tests only after careful consideration of applicable statutes and regulations, possible liabilities, and assessment of the reality of a specific workplace. Negative ramifications of a poorly conceived and/or conducted testing policy include:

  • Decreased worker morale due to perceived privacy concerns.

  • Defamation suits resulting from the publication of a false positive result.

  • Disability or discrimination claims resulting from use of prescription medications or impermissible selection of employees for tests on the basis of age, race, sex or national origin.

  • Fines or punishment for not following state guidelines.

Anticipating and preventing needless liability is always better than reacting once a situation has arisen. If you are considering an alcohol or substance abuse prevention policy at your workplace in Maryland, Virginia, or D.C., have our qualified employment attorneys assist you by contacting P.K. Hammar Legal, P.C. at (301) 657-7590.

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