Drug Screening by Employers

Today’s episode touches on two topics: international law, and the legality of employers conducting drug tests on prospective and current employees.

Michael W. Flynn
January 16, 2009

Drug Screening by Employers


First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.    

Today’s episode touches on two topics: international law, and the legality of employers conducting drug tests on prospective and current employees. An anonymous caller asked:

I’ve noticed that in some areas of the world, like Amsterdam, drugs that are not legal in the U.S. seem to be fine, and people are not arrested for use of certain quantities. So, is it illegal for an American citizen to use drugs abroad that are legal in that country? The reason I am asking is that many employers for new job applicants screen for the use of drugs assuming that they are illegal. Well, what if they are legal where you took them?

Amsterdam: a beautiful city of canals, the Anne Frank Haus, the Van Gogh museum, legal prostitution, and readily available drugs such as marijuana and hallucinogenic mushrooms. Some tourists love the Netherlands for its relatively permissive stance on drugs, while others abhor it.

The short answer to the first question is that you are subject to the laws of a foreign country when you visit. With regard to drug testing, an employer generally has the right to screen applicants, and an employer has a more limited right to test its current employees.     

First, our caller asked whether an American citizen, while in a foreign country, may use drugs that are legal in that country, but illegal in the United States. The answer is that you must generally obey all laws of the jurisdiction you are visiting. So, assuming marijuana is legal in the Netherlands, then you are free to get as stoned as you want, and the United States government cannot prosecute you. The doctrine works the other way as well. That is, if something is legal in the U.S., but illegal in a foreign country, you are prohibited from that act while visiting the foreign country. You must also submit to the foreign country’s criminal justice system for any violations. For example, an American teenager, Michael Fay, was caned in Singapore in 1994 after suffering a conviction for vandalism. Mr. Fay was subject to Singapore law and the Singapore justice system while present in the country, regardless of his country of origin.  

Next, let’s turn to the issue of drug testing in the workplace. In response to the perceived problem of alcohol and other drug use, many employers have implemented drug testing. There are two main grounds on which courts have struck down drug-testing policies: the Fourth Amendment, and privacy concerns. The Fourth Amendment only applies to government employers, and privacy concerns apply to both private and government employers.

Both the Fourth Amendment and state privacy laws protect you from unreasonable searches or intrusions of your body. To determine whether a search is reasonable, a court weighs the employer’s need to ensure that its employees perform their jobs safely against the employee’s reasonable expectation of privacy.

With regard to the employer’s need for a safe work environment, the most important factor is the industry. A fire or police department has a very strong need to ensure that its employees are able to perform their risky tasks free from impairment caused by drugs. So, a drug testing policy for these types of employees is more likely to be upheld. By contrast, the Washington Supreme Court struck down a drug-testing policy for people who worked in fields where safety was not an issue, such as desk jobs.

The other side of the analysis is the employee’s expectation of privacy, and how intrusive the search is. First, it is important to note that you generally do not have a very strong legal expectation of privacy with respect to drugs you use that are illegal in this country. Most courts have upheld drug-testing policies where the drug testing was part of a screening process that all applicants had to undergo. This is because the applicant should expect an employer to check up on him – with regard to his resume, his references, and his illegal drug use. With respect to current employees, courts have generally held that a drug test is not intrusive if the employee was told that such drug tests might be given. But, when an employer surprises its employees with random drug tests, then a court is more likely to find that the tests violate privacy rights because the employee reasonably expects to remain free from such testing.

Of course, if an employer has a good reason to believe that you are on drugs due to excessive tardiness, glassy eyes, dazed looks, etc., then the employer generally has the right to demand that you submit to a drug test.

All of these privacy concerns vary greatly from state to state because each state has its own unique privacy jurisprudence. To summarize, you generally cannot successfully challenge a pre-employment drug test. You must take the test if you wish to be considered for employment, regardless of whether you used the drug legally in Amsterdam or not. You are more likely to succeed in a protest against drug testing if your employer subjects you to random drug tests after you are employed, and where you do not work in an industry that implicates public safety.


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