Drug Testing Policies

Drug Testing Policies

Private and public employers are within their rights to test their employees for illicit substances as a condition to employment. However, these rights are not unencumbered, particularly in the public employment context. Determining whether a drug testing method is allowable can be a challenging factual and legal issue. We are experienced in handling drug testing issues intended to establish a drug-free workplace while also ensuring employee rights are respected.

Typical Policies

The U.S. Department of Labor has established a comprehensive five-step policy to ensure the workplace remains drug-free. The steps include: (1) a drug-free workplace policy, (2) supervisor training, (3) employee education, (4) employee assistance, and (5) drug testing. Not all steps are necessarily required to maintain a drug-free environment, but implementation of such a program would be beneficial to preventing employee substance abuse.

Employers typically have wide latitude to test their employees for drugs, as long as the testing comports with the limitations set by the Fourth Amendment and due process. The Fourth Amendment grants all individuals the right to privacy and prevents unreasonable searches by the government. For that reason, public employers face many more issues than private employers when testing their employees.

Typically, a drug testing policy will consist of a pre-employment test, in which a negative drug result is required as a condition of employment. Once an employee is employed, employers may also use random drug testing, as long as the selection process is truly random and does not form a pretense for targeted testing. Additionally, employers may require a test when there is reasonable suspicion that an employee is using drugs, assuming the suspicion is paired with solid evidence of drug use.

A drug test may also be used if an employee injures themselves on the job to determine whether drug use was the cause or a contributing factor to the accident. Upon return to the workplace after a leave of absence from injury or the like, employers may require employees to test negative for illicit substances before reinstating their employment. Finally, upon being reinstated, employers may give a follow-up test at random to ensure that the employee remains drug-free.

The Drug-Free Workplace Act of 1988

The federal Drug-Free Workplace Act of 1988 requires that organizations contracting with any U.S. Federal agency in the amount of $100,000 or more (not including commercial goods by purchase order or procurement contract) as well as any organization that receives any Federal grant money, regardless of the amount, maintain a drug free workplace. Compliance with the law requires the employer publish a statement to all employees that action will be taken against them if they unlawfully manufacture, distribute, possess, or sell a controlled substance while in the workplace. Employers who violate this law by certifying a false report to the contracting or grant head, by failing to post a statement, or who have excessive drug convictions in the workplace, will be subject to the loss of grant money or federal contracts.

Public Employee Drug Policy Compliance in Missouri

In the government employment context, drug testing is subject to the Fourth Amendment, and, therefore, must be reasonable. Reeves v. Singleton, 994 S.W.2d 586, 591 (Mo. Ct. App. 1999). Under Missouri state law, any public employee who is convicted of a criminal offense involving the use of an illicit substance and pleads guilty or nolo contendere must complete a drug treatment program certified by the state. If within six months of his employer becoming aware of the conviction he has not completed such a program, the employer must suspend his employment until he shows evidence of enrollment and continuing progress. Once this requirement is fulfilled, the public employee can return to his former position. If that position is no longer available, the employee can be placed in a position with comparable status. If the suspension lasts more than three months with no evidence of enrollment, the public employee will be dismissed.

It is important for the benefit of employers and employees’ rights to have a well-drafted drug-testing policy in place in the public employer context. As seen in Reeves, a request for a random drug test may be denied when there is no well-crafted and random drug-testing policy in place. Having a firm drug-testing policy in place can be the difference between having a drug test upheld or rejected in a court of law.

Private Employee Drug Compliance in Missouri

There are no Missouri statutes regulating the use of drug testing in private employment. Judicial decisions on the topic tend to favor the ability to drug test under a wide range of circumstances so long as there is an acknowledged drug-testing policy in place. See, e.g., Rothweil v. Wetterau, Inc., 820 S.W.2d 557, 558 (Mo. Ct. App. 1991) (employee’s discharge after failing a drug test mandated by his employer upheld); Irwin v. Wal-Mart Stores, Inc., 813 S.W.2d 99, 101 (employee unsuccessful in challenging drug test administered by Wal-Mart); Stewart v. Duke Manufacturing Co., 292 S.W.3d 495, 497-98 (Mo. Ct. App. 2009) (unemployment compensation claimant was disqualified from receiving benefits because he tested positive for cocaine after a random drug test).

Contact Us

To set up a consultation regarding drug testing policies, please contact the attorneys at the Law Offices of Kevin J. Dolley at (314) 645-4100 or by email at kevin@dolleylaw.com. All legal consultations are held strictly confidential.

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