Legal Framework Governing Drug and Alcohol Testing by Private Employers

An increasing number of businesses are insisting on a drug-free workplace to prevent accidents that result in lost productivity and worker’s compensation claims. While employers may drug test employees under Kan. Gen. Stat. Ann. §75-4362, there are specific procedures and policies that are necessary to avoid potential exposure to wrongful termination claims, retaliation claims under employment discrimination laws and other potential forms of liability.

While there is no comprehensive federal law that directly regulates the adoption of drug testing by private employers. However, the Drug-Free Workplace Act does require implementation of certain education requirements on private employers that contract with the government, but the act does address the issue of whether to drug test. The Americans with Disabilities Act (ADA) also does not prohibit drug testing by private employers because substance abuse is not considered a disability under the ADA. Because there is no specific federal regulatory scheme that covers the adoption of drug testing procedures or policies by private employers, Section 75-4362 provides the appropriate procedures.

This provision authorizes testing of employees in safety-sensitive positions but only when there is reasonable suspicion of substance abuse, such as the following:

• Medical emergencies attributable to drug use
• Reports of drug use by the employee
• Workplace accidents that may be caused by substance impairment
• Observation of visible signs of impairment

If an employer maintains a drug free workplace program, the employer should provide a written policy that advises employees of the consequence of violation of the policy in term of unemployment and workers’ compensation benefits. Employers also should ensure that employees are informed that drug testing for alcohol and drugs is a condition of employment.

The actual chemical testing must be conducted by licensed professionals in a certified testing lab. When an employee is injured during a workplace accident, drug testing will typically be conducted at the time of treatment for injuries suffered in the on-the-job accident. However, an employer should be reasonable in carrying out its drug policy. For example, the employer should not delay getting an employee, who is hurt in a workplace, accident emergency medical attention for the purposes of facilitating immediate drug testing. If the employer complies with these policies, benefits under the Kansas worker’s compensation system and unemployment benefits may be denied.

If you have an “employment-at-will”, check out your rights regarding wrongful termination.