State Law

Each state has its own body of laws which concern workplace drug testing or monitoring. For example, Alaska has no mandatory drug-testing laws but does have voluntary drug-testing laws that employers must follow if they chose to conduct drug-testing of job applicants or employees.

In many states, employers have the legal right to test job applicants for drugs or alcohol provided the applicants know that the testing is part of the interview process for all employees.

In most situations, the testing cannot be conducted until the applicant has been offered a position.

Selective Testing

An employer may face legal difficulties if it chooses to test only certain applicants for a position. In other words, an employer cannot pick and chose (based upon educational experience, demeanor, looks, or any other characteristic) which applicants it will test for drugs or alcohol. The employer must treat all applicants for the same job in a similar manner.

What Types of Tests are Permissible?

Most state statutes also limit the type of testing that may be performed, whether it be through urine, breath, blood, or hair.

Note: Hair testing is the newest method of drug testing and can accurately test for drug use within the previous 90 days, according to its proponents. Urine testing, on the other hand, generally only provides accurate results for the previous five-day period.

Covert Testing

If an employer tests an applicant in a covert manner, without the applicant's knowledge or consent, the employer can face serious legal difficulties. For example, an employer may not pick up stray pieces of hair that an applicant inadvertently left on a chair during the interview and test them for drugs unless the applicant knows the employer is doing so.

Testing Procedures

State statutes may also set forth the particular company or laboratory that must perform the actual testing. In recent cases, for example, state courts have held that employees who tested positive for drug use were nonetheless wrongfully discharged if the testing was not completed by an "approved" laboratory.