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By Linda Williams

Due to potential liability issues, the drug testing of prospective employees has become fairly commonplace. There is too much at risk for employers to extend an employment opportunity to someone who might be dealing with drug/alcohol abuse issues.

Once someone gets hired, they then should expect to be subject to drug testing as an employee. Most employers will reserve the right to request a drug test if they feel there is cause to do so. The reasons they might request such testing might be anything from erratic behavior on the employee’s part, to an employee being involved in an employment-related accident. In a litigious society, employers have to do whatever is necessary to protect the company.

If you ever find yourself in a situation where you are asked to take a drug test and fail, you need to know your rights. Depending on the circumstances, it will likely be in your best interest to consider hiring or consulting with an employment attorney like this.

It’s important for you to recognize that employer/employee rights related to drug testing vary from state to state. With that said, you can get a general idea of what to expect by reading the topics below.

Overview of Employer Rights Related to Requesting a Drug Test

Under federal and most state laws, employers are permitted to request drug testing for both prospective and current employees. According to the U.S. Supreme Court, drug testing does not infringe on an employee’s rights. However, employers are required to protect each employee’s right to privacy related to testing results.

In some states, drug testing is only permitted if the employer has just cause for making such a request. Also, some states require employers to give employees advanced notice of an impending drug test.

Actions Employers Can Take Related to Failed Drug Tests

Here is where things get complicated. In most states, employees can be fired for drug use. However, there are approximately 11 states where employees are protected from dismissal if they are legally using medical marijuana. Also, the Americans with Disabilities Act (ADA) protects employees who are using prescription medications as long as the underlying medical condition exists.

As for the use of illicit drugs (heroin, fentanyl, cocaine, marijuana, etc.) and alcohol, there are no protections against firing employees. In some states, employers are encouraged to offer reasonable accommodations like access to an employee assistance program (EAP), take other disciplinary actions like fines, offer probation, or strongly suggest rehab.

It’s noteworthy that some states have legalized marijuana use. In such states, marijuana use would be treated the same as alcohol use.

How to Appeal a Failed Drug Test

The right to appeal a drug test varies from state to state. If an employee believes a drug test was faulty, some states give them the right to contest the results. If granted that right, they must appeal within a certain time frame. Some companies, organizations, and unions have very specific rules about the testing process and the right to appeal.

Effect of Failed Drug Test on Unemployment Benefits

Again, the rules vary by state. In a lot of states, employees can be denied unemployment benefits if fired over a failed drug test or an unwillingness to submit to a test. The premise for such a rule in drug abuse is considered misconduct, which is cause for dismissal in most states.

In some states, benefits are denied for a certain amount of time, after which an unemployed individual can seek reconsideration.

About EAP Programs

An EAP program is an employment benefit that gives employees free access to counseling programs for personal problems. EAP (or Employee Assistance Programs) cover counseling and aid related to drug abuse, mental and physical health issues, problems at home, and financial issues.

Should You Seek Legal Counsel?

If you feel your rights have been violated in regards to drug testing or how you were treated after failing a drug test, you should consult with an attorney. If an attorney feels you were treated in some manner that violates the law, they might advise you to seek remedies. If you do seek legal counsel, you should focus on finding a lawyer who specializes in employment law.


  1. I recently took two random drug tests . Both are days apart but results are not only opposite results for Marijuana ( THC ) but the handling of the positive test is extremely suspect . On April 9th at 9:20 A.M I took first random drug test . My employer was told the test was having technical difficulties and also that specimen wasn’t available. After a few more days of this I was sent back to same facility on April 19th at 1:51 PM and took second test . On April 20th at 3:11 pm the second specimen was received and at 3:24 PM on April 20th the test was confirmed negative .
    7 days later on April 27th at 10:37 pm the first specimen showed up . On April 30th at 8:46 AM the test results were positive .
    Upon further questioning we found that paperwork was also incorrect from first specimen.
    What is the policy pertaining to this kind of mishandling of a specimen? Furthermore do I have any rights pertaining to my protections with such a mishandling of my specimen , especially with a second random coming up clean ?


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