Last updated : November 18, 2024
Drug testing is part of a healthy workplace. The benefits have been documented and it’s not just something that is the province of specific industries like aviation and mass transit—industries required to test as a matter of public safety. Employers have liability, insurance, and productivity concerns, but it really seems to bother some organizations that those rationales aren’t strictly necessary. It’s fair to say that employers test because it’s their right, and despite what many people think, there isn’t a “right to privacy” standing in their way.
It’s not that a right to privacy doesn’t exist. There is such a right, and it is indeed a constitutional right, but it’s not unlimited, and it won’t be much help to anyone anticipating a job-related drug test. The Fourth Amendment to the Constitution—the one often cited as protecting from unreasonable searches and seizures applies to the government. Private businesses do have laws governing how to fairly execute a drug policy, but testing is still allowed.
Privacy might matter if companies were dragging their employees kicking and screaming to the tests, but that’s not what’s happening here. Employees and job applicants are absolutely free to refuse. They’re likely to pay a price for that refusal, however. It could be dismissal. It could simply be the absence of a job offer at the end of the application process.
The scenario is not all that different even if government action is involved. If you’re suspected of driving under the influence, for example, you have a perfect right to refuse a breathalyzer. Your cooperation cannot be compelled (in most cases). Standing on your rights, however, can have consequences, including the peremptory suspension of your license.
None of this means that employers have the right to test anyone and everyone however they choose. In addition to the procedural requirements imposed by law in many states, especially for employees, there are some notable limitations on company power. Employers can’t single out certain groups for testing if they’re basing those groups on criteria like disability or race, and the Americans with Disabilities Act protects people with proper prescriptions, but even that has limitations (you can use medication, but you can’t necessarily use inhibitive medication while performing any job task, especially when it comes to heavy machinery or any employee safety matters).
What about marijuana use? Though it’s making headlines for being introduced recreationally, the decriminalization doesn’t mean that employers have to ignore it. First, compare it with alcohol. Though it’s legal, employers can fire you for being inebriated on the job. So using and working is out.
Second, since marijuana stays in a person’s system, that might mean testing for residual evidence in the body isn’t allowed, right? Sorry, no. Drug history isn’t exempt and neither is marijuana legal on a federal level. An employer can test you for recent use and while what’s recent might mean different things for different drugs, employers don’t have to differentiate, provided the same rules apply to everyone.
Well, there’s still medical marijuana, right? As Colorado medical marijuana users may already know, that issue has been settled already. A case heard in the Colorado Supreme Court was decided 6-0 in favor of an employer who fired an employee using medical marijuana. It’s been mentioned before, but while your employer can’t prevent you from smoking a joint, you aren’t free from the consequences of your choice. Whether you like it or not, your private business may not be quite as private as you’d like if you want someone else to pay you for your work.
