Drug Testing Facts And Comparisons.

Drug Testing Facts and How To Pass Your Drug Test.

Get Your Drug Testing Facts Straight.

We hear a lot of interesting things when it comes to how drug tests are conducted, what they can detect and how they can be beat.  Some is accurate.  Some is just plain myth.  This article is intended to to dispel some of the common drug testing myths by bringing you the simple drug testing facts.

The ability of a drug test to detect a specific drug is dependent on several different factors:

  • The drug itself (e.g., drug class, particular type, etc.)
  • How much of the drug a person has used.
  • How often the person has used the drug.
  • The type of drug test being used.
  • Individual factors, such as the person’s age, metabolism, overall health, weight, and so forth.

Did My Drug Test Violate The Law?

Federal laws can apply when an employer conducts a drug test of employees or new applicants.  In addition, many states have their own laws that can vary from state to state on when, where and why an employer may test a new applicant or an employee for the presence of prescription drugs or drugs of concern in your system.

Drug Test Results Used to Discriminate.

The United States Genetic Information Nondiscrimination Act (“GINA”) prohibits employers from using non-pertinent information to discriminate against employees in hiring or employment.  Because drug tests take samples from a person’s body that may contain genetic information that would reveal disabilities, susceptibility to certain diseases and other confidential medical information, United States Genetic Information Non-Discrimination Act of 2008 (GINA) bars employers from gathering and using genetic information to screen out certain employees or applicants.

Under the United States Americans with Disabilities Act (“ADA”), employers are barred from testing an applicant to screen out disabilities or to discriminate against current employees.  Many states also limit employer access to medical information about an applicant or employee.

Drug Testing Facts And Your Privacy Rights.

Some state courts have issued decisions that affect job applicant and employee rights when employers do conduct drug testing.  Drug tests can explore a person’s drug intoxication.  Some of the tests themselves are invasive and the results do not merely show current drug use but can reveal off-duty drug use.  Some states view such measures as possible violations of employees’ and applicants’ right to privacy.  An employment lawyer in your state should be up to speed on all of these aspects of the law that may be implicated in your drug test.

Applicant vs Employee Drug Testing Facts.

In general, most laws place more limits on an employer’s right to drug test an employee than to test a new job applicant.  Some states limit employer drug testing of employees to situations indicating “individualized suspicion” of possible drug use.  An example might be where the employee to be tested was involved in an accident or just returned from drug or alcohol rehabilitation leave.  Many states allow employers in certain professions and industries, such as health care workers, police officers, or public transit operators, to test employees with fewer restrictions.  Ask an employment lawyer familiar with the drug testing laws in your state about when, how, where and why employers may drug test people in your capacity (either applicant or employee).

Drug Testing Facts And Legal Off-Duty Conduct.

Drug tests are not able to distinguish between intoxication, current drug use and drug use in the recent past because the tests simply show that the person tested has used a specific drug at some time. Certain drugs can be detected longer than others.  Cocaine leaves the blood stream relatively quickly, while THC (the active compound in marijuana) leaves its mark for many days to months after the person has used the drug.

Employer drug tests reveal legal pharmaceuticals as well as illegal drugs, so .  This means an employer may learn about an employee’s medical conditions from drug tests. Also, now that many states have legalized either recreational or medicinal (or both) use of marijuana.  Employer drug tests will reveal legal use of marijuana possibly many days prior to the test.  An example could be, if you smoked pot on the weekend in Colorado (where it is currently legal for recreational use) and your employer makes you submit to a drug test on Monday in Georgia, the marker for THC will still be in your blood stream.

As of this writing, most courts have decided that employers can refuse to hire an applicant who tests positive for THC no mater the source.  With the legalization of marijuana as a relatively new development, employees and employers will undoubtedly be filing new lawsuits.  They will ask courts in their jurisdictions to determine if an employer can fire or otherwise punish an employee or even an applicant for using legal marijuana during off-duty hours when that use shows up in a drug test. Ask an employment lawyer about the status of these issues in your local.

Was the Drug Test Properly Administered?

Employer drug testing also raises questions of procedure.  Did the employer or the employers contractor administer the drug test properly?   Was the sample handled in a way that its ”chain of custody” can be reliably confirmed?  Was the laboratory that tested the sample accredited and trustworthy?

When Will The Drug Test Be Administered? 

Some states allow an employer to conduct a drug test only after making a job offer to the applicant with passing the test as a condition of hire.  Utah goes so far as to allow applicant testing only if the employer’s management personnel also undergo periodic testing.

You may be able to challenge some or all steps in the drug testing process.  You may also be allowed to have your sample re-tested by a different laboratory.  An employment lawyer can help you sort out these questions and determine the best steps to take in your particular case.

When Is a Drug Test Allowed? 

Drug testing is very common in the private sector and private employers generally have more leeway in employer’s testing policies than government employers.  Private employers usually are not required to obtain consent from employees to test.  Employees can be subject to employer actions if they refuse a request for a drug test.   Many courts do require some form of notice or warning that a drug test may be required during the course of employment or the job application process.

Drug Testing Is Allowed In Several Situations:

  • Pre-Employment – Testing of job applicants is the most popular type of drug testing used by private employers. Courts have upheld pre-eployment drug testing by reasoning that employers have a right to seek qualified applicants that are drug free.  This requires applicants to choose not to apply for jobs that require testing if they do not wish to be tested.
  • Reasonable suspicion – Drug Testing is allowed when employers reasonably suspect an employee of drug use.  What constitutes reasonable suspicion varies depending on the court.  Some common examples include observing drug use or physical symptoms of use such as erratic behavior or a report of use from a reliable source.
  • Random testing – Random testing is often attacked as violating United States employee privacy rights and some states have statutes preventing random testing.  However, many courts have upheld random testing in safety-sensitive workplaces and in situations where there is no direct supervision of employees.  The testing must be random and not directed at specific employees for other reasons than drug testing
  • Post Accident – Post accident drug testing usually impacts United States workers compensation claims.  A positive test following an accident often creates a presumption that the accident was caused by intoxication.  This must be rebutted by the employee before he can claim compensation benefits.

Federal law doesn’t have much to say about drug testing except for certain employers such as transportation, nuclear energy, and military contracting industries that are heavily regulated by the federal government.   Many states or even some local governments often do regulate drug testing. For a more comprehensive look at Federal, State or Local Drug Testing Laws see Workplace Drug Testing Laws.

What Drugs Can My Employer Test For?

Many employers require employees to submit to a drug test both before and after hire.  Most employers use urinalysis to test primarily for the big five illicit drugs:

  • Amphetamines (AMP) – speed, meth, crank, ecstasy.
  • Marijuana (THC) – weed, hash, cannabinoids.
  • Cocaine (COC) – cocaine, crack.
  • Opiates – heroin, morphine, opium, codeine.
  • Phencyclidine (PCP) – angel dust.

However, some employers test for many other drugs.  It is just as simple to test for all 14 drugs of concern and many employers do so.  The employee will have no idea which drugs are being tested for. 

Some Drugs That Can Be Tested For Are:

  1. Benzodiazepines (BZO)
  2. Buprenorphine (BUP)
  3. Cocaine (COC)
  4. Ecstasy (MDMA)
  5. Marijuana (THC)
  6. Methadone (MTD)
  7. Methamphetamine (mAMP)
  8. Morphine (MOP)
  9. Opiates (OPI)
  10. Oxycodone (OXY)
  11. Phencyclidine (PCP)
  12. Tricyclic Antidepressants (TCA)
  13. Propoxyphene (PPX)

What Happens If I Fail a Drug Test?

Each state or municipality has its own rules regarding drug testing in the workplace and the consequences for failing a drug test.  If you fail a pre-employment drug test the company will probably refuse to hire you.  If you fail a drug test while employed you may terminate or prevent you from being promoted.

Your state may also deny you unemployment benefits, workers’ compensation benefits, or disability benefits for failing a drug test.  Not every jurisdiction or employer has a “zero tolerance” policy.  The consequence of failing a drug test often depends on the employer.

How Do I Pass A Drug Test With Confidence?

Each drug test has its own specific strengths you must avoid and weak­ness in which one can take advan­tage.  What you learn here could make the difference between failing and passing a drug test in Minnesota.  We will also provide information on how to detoxify your body completely and permanently.

Use Drug Testing Facts To Learn How To Pass A Urine Drug Test.How To Pass A Drug Test For Urine.  The Urine Drug Test is the most common due to its simplicity to administer, accuracy and immediate results according to Minnesota drug laws.  The urine drug test is also the easiest to beat.

Use Drug Testing Facts To Learn How To Pass A Saliva Drug Test.How To Pass A Drug Test For Saliva.  The Saliva Drug Test can be given at anytime, anywhere and by anyone according to Minnesota drug laws. The saliva drug test results are also very accurate and immediate.

Use Drug Testing Facts To Learn How To Pass A Hair Drug Test.How To Pass A Drug Test For Hair.  The Hair Drug Test can detect drug usage in any hair that was growing anywhere on your body at the time you used the drug according to Minnesota drug laws.  You are at risk for at least 90 days from your use.

Use Drug Testing Facts To Learn How To Pass A Blood Drug Test.How To Pass A Drug Test For Blood.  The Blood Drug Test is very accurate and must be given by a heath care professional according to Minnesota drug laws.  It is most often given by insurance companies or law enforcement.

Use Drug Testing Facts To Learn How To Dertox To Pass A Drug Test.How To Detoxify Your Body Completely.  If you have 5 days you can detoxify your body completely and permanently.  You can be toxin free until you choose to reintroduce new ones.

Federal law doesn’t have much to say about drug testing except for certain employers such as transportation, nuclear energy, and military contracting industries that are heavily regulated by the federal government.   Many states or even some local governments often do regulate drug testing. For a more comprehensive look at Federal, State or Local Drug Testing Laws see Workplace Drug Testing Laws.

Can Employees Who Use Medical Marijuana for a Disability Be Terminated?

The law allows private employers to have a “zero tolerance” policy for those who test positive for marijuana, even in states where it is approved for recreational use. Whether an employer enacts such a policy or makes an exception for medical marijuana users is at the employer’s decision.

For example, in San Francisco, taxi drivers are subject to drug testing.  However, taxi drivers who have valid medical marijuana licenses will not suffer suspension or sanctions if testing positive for marijuana.

Twenty three states and the District of Columbia have legalized the use of medical marijuana.  Alaska, Colorado, Oregon and Washington have legalized it for recreational use.  With so many states recognizing legal use of marijuana, many states are now grappling with the issue of whether employers in those states are permitted by law to terminate an employee who uses medical marijuana for a recognized disability.  Right now it is pretty universal the employer can.

The  United States Americans with Disabilities Act  prohibits discrimination against individuals with disabilities for employment. These laws require employers to make reasonable accommodations for disabled employees to enable them to perform your job.  Medical marijuana can be prescribed for glaucoma, cancer, HIV/AIDS, Crohns disease, Multiple Sclerosis or any other illness for which marijuana provides relief.

Eleven States Require Accommodation Provisions For Medical Marijuana Use.  They are Arizona, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Minnesota, Nevada, New Hampshire, New York, and Rhode Island. These states all prohibit discrimination based on medical marijuana registration status and any adverse action based on a positive test result absent work-related impairment.

Drug Testing Facts And Your About Off Duty Legal Marijuana Use.

A number of states legalizing medical and recreational marijuana in recent years.  Are employees protected from being fired for smoking pot.  In nearly all states, it’s clear that employers are free to fire employees for being under the influence of marijuana at work.  But what about off-duty use?  It depends on your state’s laws and whether you were using marijuana for medical or recreational purposes.

Three states have case law holding that medical marijuana cannot be considered a “reasonable accommodation” for a disability:

  • California – In 2008, the California Supreme Court held that employers may fire employees for marijuana use, even if it is used for medical reasons, because marijuana is illegal under federal law.
  • Michigan – In 2012, the Sixth Circuit held that medical marijuana users are not a protected class like race or religion, and that the medical marijuana laws of Michigan which permit its use only applied to state and local governments, not private employers.
  • Colorado – In 2015, the Colorado Supreme Court ruled that an employee who used medical marijuana off-duty may be lawfully terminated for testing positive for marijuana. The court reasoned that marijuana is illegal under Federal law.

While none of the laws either require employers to permit on-duty drug use or prohibit workplace drug testing, these anti-discrimination provisions raise questions about the validity of adverse employment actions based on positive drug tests in these states. 

What Rights Do Employees Have?

While drug testing is allowed in many situations and required by the federal government under the United States Drug Free Workplace Act of 1988 in some situations, employees do have some rights and expectations of privacy.

Employee Rights Undergoing Drug Testing Review Are:

  • Employers must have a legitimate reason to test.
  • Employees generally must be given notice.
  • Employers cannot share information of drug tests with third parties.
  • The drug test must be conducted by an approved laboratory under approved conditions.
  • Depending on the court, the employee may have the right not to be observed while tested.

Do I Need a Lawyer?  If you have been terminated over the results of a positive drug test, it may be helpful to discuss your situation with a qualified employment lawyer who handles wrongful termination issues. They may help you contest the results of the test itself, or pursue other remedies such as litigation if necessary

Physical & Drug Tests in the Workplace.

Many employers have begun using physical and drug tests to screen employees to determine who can and cannot perform a particular job duty.  Also, some employers are required by the federal government to regularly test their employees for drugs in accordance with the Drug-Free Workplace Act. Employers, employees, the legislature and the courts have grappled with whether such physical and drug tests are necessary or legal.

Drug Testing In Medical Exams.

Employers may examine employees to make certain that the employees can physically and mentally perform the job duties:

  • Before beginning work: The Americans with Disabilities Act prohibits an employer from making a job offer contingent on passing a medical exam.  Insurers may also require employees to undergo physical examinations before health insurance coverage will begin.
  • A Continuing Employee: Once an employee has begun working, an employer is usually limited in requesting medical examinations.  If the employer observes some activity or behavior that may indicate that the employee is not mentally or physically able to perform the job, the employer may then request a “fitness for duty” test.
  • An Employer’s Access To The Results: The Americans with Disabilities Act limits an employer’s ability to access every detail in the medical examination.  The doctor conducting the examination may only report whether the employee is physically able to perform the job duties, with or without restrictions.

Some state laws and the Americans with Disabilities Act place restrictions on when an employer may test an employee for drugs and what questions an employer may ask an employee regarding drug use.  An employment lawyer would best be able to help an employee or employer determine what questions or tests are appropriate under these laws.

  • Job Applicant:  Employers may generally require job applicants to submit to drug tests.
  • Continuing Employees: Employers generally cannot require employees to submit to drug tests.
  • High Risk Job:  If the employer demonstrates that the job carries a high risk of injury, like a transportation job, the employer may require random drug tests.
  • Employer Believes the Employee Is Intoxicated:  An employer may require a drug test if the employer reasonably believes that an employee is impaired while on the job.

Drug Testing Facts About Lie Detector Tests

Under the Federal Employee Polygraph Protection Act (29 U.S.C. § 2001), employers cannot require employees to take lie detector tests unless the employee has been accused of theft or embezzlement.

Do I Need an Experienced Drug Test Lawyer?

What a Lawyer Can Do?  An employment lawyer familiar with drug testing laws in your state can assess whether or not your employer acted legally in testing you and in its response to the test results. And, the lawyer will analyze whether or not the employer conducted the drug test properly.

Because the law is quite detailed, an employment lawyer can assist an employer with developing medical and drug testing procedures that conform to federal and state law.  A lawyer can also help an employee who believes that they have been tested unlawfully. The legal process for lawsuits is often quite difficult, and can be even more trying if the lawsuit is against your current employer. A lawyer can assist you with this process and help protect your rights if you continue to work for the employer during the lawsuit.

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