5 Tips to Legal Drug Testing

A failed drug test in an employment situation signals the end of the road for most employees. By law, employers are required to keep drug-free facilities. But what do you do when you know that you have no substances in your body or you take prescription medications?

Prescription medications sometimes have traces of drugs that will show up in a drug test, causing employees to fail the drug test. Expect immediate termination.

What Drugs Are Employers Testing For?

Although the government doesn’t have any laws that govern drug testing in private employment, many employers choose to use drug testing. Consistency is vital, meaning that employers meet their own rules for drug testing. In most cases, the drug tests are basic.

Basic Drug Test

  • Amphetamines (speed, meth, ecstasy)
  • Cannabinoids (marijuana)
  • Cocaine (crack)
  • Opiates (heroine, morphine, opium)
  • Phencyclidine (PCP)

A more extensive drug test would also show barbiturates, benzodiazepines, ethanol, hallucinogens, and inhalants. It depends on the employer to determine what type of testing they require from potential and current employees.

5 Tips to Legal Drug Testing

Despite the fact that the law doesn’t outline rules for drug testing, employers can still face trouble for their drug testing practices. Pennsylvania state law does not add any additional requirements to the federal law about drug testing. As an employee, you need to know what makes a drug test legal.

1. One for all, All for One.

The three musketeers had something going on here that employers need to put into practice. If one employee is drug tested, then all employees should be drug tested as well. When your employer singles out an employee for drug testing, your employer opens themselves up to possible lawsuit for discrimination.

Tip:  An employer might drug test employees of a certain race, gender, or income level. This would be discrimination.

2. Government money means required drug testing.

Due to the Federal Drug-Free Workplace Act, all businesses that have more than $100,000 in federal contracts must test employees for drugs. Companies that receive federal grants also must drug test their employees.

3. To Test a Job Applicant, You Have to Offer Employment.

When a company has 15 or more employees, the Americans with Disabilities Act comes into play. Employers cannot test a job applicant without making an offer of employment depending on the results of the test. It’s only legal to test applicants when an offer of an employment has been made.

4. Drug Test with Consent.

Trying to secretly test an employee without their knowledge is against the law. Picking up a stray hair and sending it into the lab would cause all sorts of legal problems. Only drug test employees with their knowledge and consent.

5. Stay Aware of Federal and State Law.

With the incorporation of medical marijuana into some states, including Pennsylvania, certain interpretations of the law may alter. However, at this point, Pennsylvania does not have any additional laws to the federal law on drug testing. The main key is that employers are consistent in their drug testing policies.

How Should I Respond to a Failed Drug Test?

Drug tests are not failure free. In fact, people who have never used drugs might receive a positive on a drug test. A false positive may seem impossible to fight, but you may be able to ask your employer to allow you to take the test again. After all, testing labs can make mistakes as well. You may also have an option to contest the results.

4 Causes of a False Positive

Many products and legal substances can cause a false positive. A lot of very common household items can show up on a drug test as a positive.

  • Nasal sprays
  • Ibuprofen
  • Poppy seed products
  • Products with hemp (such as shampoos, tanning lotions, food products)

If you know that you have a drug testing coming up, you may want to cut back on using any of the above products.

I Failed a Drug Test. What Now?

Failing a drug test can disrupt your career, due to termination or loss of job offer, and a positive on a drug test could also mean that you lose your unemployment compensation. Depending on your situation, you may have a few options available to you. Some employers even allow employees to seek rehabilitation rather than be immediately terminated.

1. Talk to your Employer First

Schedule an appointment with the person in charge of drug tests at your company and bring all of your medications and supplements. An experienced laboratory may be able to trace what prescriptive or over-the-counter medication influenced the test result. If not, you may be able to have a retest.

When a retest results in a positive, you should contact an employment lawyer.

2. Consult a Lawyer

An employment lawyer understands what a company can and cannot do under the law. Therefore, a lawyer can analyze your situation and know what legal options are available to you. Some employers fail to uphold the law in how they handle drug tests.

What Laws Oversee Drug Tests?

Since Pennsylvania doesn’t have any state law on drug tests, Pennsylvania employees lean on federal law for protection. The Genetic Information Nondiscrimination Act (Gina) and Americans with Disabilities (ADA) are the two main laws that outline employee protections when it comes to drug tests.

The Genetic Information Nondiscrimination Act

The GINA obligates employers to not treat employees differently based on their genetic information. Employers are not allowed to track information from the drug tests that might reveal disabilities, certain disease, or other information. This law requires employers to not use this information to make employment decisions.

The Americans with Disabilities Act

The ADA prohibits companies and businesses from screening out employees who might have HIV/AIDS or other disabilities and discriminating against them. A drug test might reveal HIV/Aids. Employers are not permitted to take negative employment action against an employee who has a health issue revealed on the drug test.

The Question of Legal Off-Duty Conduct

The trick of drug tests is that a drug test cannot distinguish between current drug use and drug use in the recent past. After all, certain drugs remain in the blood stream longer than others. Now that medical marijuana has been legalized in Pennsylvania, employers and employees will be looking to the courts to determine when drug tests are permissible.

An employment lawyer can help you navigate this tricky new territory for employment law.


If you test positive for drug use but have never used drugs, contact an employment attorney now to hear your legal options.

Chat with an employment attorney: (412) 626-5626 or lawyer@lawkm.com.