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Summary of differences between federal and state regulations
Massachusetts does not have a drug testing law. However, case law impacts how drug testing can be conducted in the state. Random testing is allowed for employees in safety-sensitive positions, but is not allowed for other employees. Reasonable suspicion tests are allowed.
In Folmsbee v. Tech Tool Grinding & Supply, Inc., the court ruled that a company’s drug testing policy was reasonable in light of the nature of the employee’s business, evidence of employee drug use, and the procedures used to guarantee the privacy that were used by the medical center conducting the tests.
An employee had claimed that the mandatory drug testing program interfered with her right to privacy. The court balanced the employer’s legitimate interest in determining the employees’ effectiveness of their jobs against the seriousness of the intrusion on the employees’ privacy.
The nature of the company’s business required extreme alertness and precision, and a slight error could result in harm to employees and customers. The employer had a strong basis for suspecting that employees were using drugs (an owner smelled marijuana smoke, and marijuana cigarette butts had been found in a company restroom). The court ruled that the employee did not have grounds for her claim.
In Webster v. Motorola, Inc., the court ruled that a random drug testing program is reasonable for an employee in a safety-sensitive position, but not for an employee in position that is not safety-sensitive.
A manufacturing company did pre-employment, for-cause, and random testing. Under the random program, each employee was selected at least once in a three-year period. Two employees brought a lawsuit against the company and claimed that drug testing interfered with their right to privacy. The court balanced the employees’ interest in privacy against the employer’s interest in determining whether employees are using drugs. It looked at the nature of the business and the employee’s duties.
One employee’s responsibilities required him to drive a company vehicle 20,000 to 25,000 miles per year. The other employee was a technical editor. The court determined that a company’s general interest in protecting the safety of employees and providing them with a drug-free working environment is not sufficient to justify a random drug testing program. However, a company has an added interest in assuring that an employee not operate a motor vehicle when intoxicated by drugs. This outweighs an individual’s right to privacy.
While a company’s random drug testing policy is permissible for safety-sensitive employees the court held that it is not reasonable for employees that are not in a safety-sensitive position. The technical editor’s job was not sufficiently safety sensitive to justify random drug testing.
Federal
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness. Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.
Employers need not specifically suspect drug use before post-incident testing, but there should be a reasonable possibility that drug use by the employee could have contributed to the reported injury or illness. For example, it would not be reasonable to test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by lack of machine guarding or a tool malfunction.
The reasonableness of a drug testing program is based upon:
- Whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred).
- Whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and
- Whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred.
The drug test must be capable of measuring impairment at the time the injury or illness occurred and not simply past use.
The OSHA rule allows employers to conduct post-accident drug testing to comply with the requirements of a state or federal law, regulation, or program.
Contacts
Drug testing rules
U.S. Department of Transportation
U.S. Department of Labor
Regulations
DOT drug testing rules
49 CFR Part 40
49 CFR Part 382
Drug-Free Workplace Act of 1988
United States Code at 41 U.S.C. 81
Guidance Document