Drug testing often can be a confusing area of the law for many employers. The first thing to consider is whether you operate in an industry in which drug testing is required or regulated (i.e. trucking/transportation) or are subject to certification or licensure requirements that include drug testing (i.e. ISO, etc.). If you are not subject to any specific drug testing requirements by virtue of your industry or any licenses/certifications, then the default rules apply (assuming you only are operating in the state of Texas since this blog post will address federal and Texas state law).
As a general matter, there are no federal or state limitations on private companies to adopt and/or control drug testing policies. Furthermore, there are no requirements or mandates that a private company must adopt drug testing policies and/or drug test its employees. Accordingly, private companies can choose whether or not to have a drug testing policy and what the requirements and procedures of any such drug testing policy are. It is wholly at the employer’s discretion and an employer is permitted to test some but not all employees. It is important to keep in mind, though, that any drug testing policies and decisions on testing should be neutral in their application so the company can avoid any discrimination claims.
All that said, in Texas, if an employer would like to prohibit an employee from recovering unemployment compensation if the employee is terminated due to drug usage, the employer must have a drug testing policy in place and must follow specific guidelines. Those guidelines are as follows:
- The employer must have a policy prohibiting a positive drug test result, receipt of which has been acknowledged by the employee;
- The employer must present evidence to establish that the terminated employee consented to drug testing under the policy;
- There must be documentation to establish that the chain of custody of the terminated employee’s sample was maintained;
- There must be documentation from a drug testing laboratory to establish that an initial test was confirmed by the Gas Chromatography/Mass Spectrometry method; and
- There must be documentation of the test expressed in terms of a positive result above a stated test threshold.
So if the employer’s focus and goal is to challenge unemployment claims (or at least have the ability to do so should the situation ever arise), the employer should have a drug testing policy and have all employees sign an acknowledgement of receipt of the policy and a drug testing screening consent. Both forms should be signed at the outset of the employment relationship. By doing so, the employer preserves the right to challenge unemployment should it ever choose to do so.
As a final reminder, if you are in a specific industry or subject to certification and/or licensure requirements, it is a good idea to check with your employment law attorneys to assist you in creating and implementing any drug testing policies.