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  • Leslie A. Farber

Drug Testing in Schools & The Workplace: Know Your Rights

Updated: Jul 3, 2019



Drug abuse is a serious health issue both nationally and in New Jersey. Although there is considerable debate about the degree to which substance abuse impacts performance on the job or in the classroom, there is no question that using drug testing as a potential deterrent is on the rise in workplaces and schools across the country.

According to the Substance Abuse and Mental Health Administration, approximately 49 percent of full-time workers are subject to some form of workplace drug testing. Except for certain employers in industries that are heavily regulated, workplace drug testing is not regulated by federal law. Many states and municipalities do regulate workplace drug testing, and the rules depend on whether the employer wants to test an applicant or a current employee.

State laws typically allow employers to test job applicants for drugs, provided the employer follows the rules regarding providing notice and testing procedures. Today, companies that conduct drug testing on job candidates typically include an agreement form in their applications. You have little choice but to agree or drop out as an applicant.

There are some legal constraints on testing current employees for drug usage in most private employment jobs. In some states, companies cannot conduct blanket or random drug tests. Testing must be focused on an individual that the employer has reason to believe is using drugs or whose job carries the risk of injury or damage if performed under the influence.

A number of states and municipalities have laws that regulate specific aspects of work-related testing for substance abuse. But according to the American Civil Liberties Union (ACLU), which works at the state level to help enact legislation to protect workplace privacy rights, only in New Jersey, California and Massachusetts have the highest courts ruled out certain forms of drug testing on constitutional or statutory grounds.

In 2002, faced with the rising concern over teen substance abuse, the U.S. Supreme Court broadened the authority of public schools to test students for illegal drugs. The ruling expanded the scope of school drug testing, which previously had been allowed only for student athletes. Since the decision, a growing number of schools have been conducting random testing and/or reasonable suspicion/cause testing using models established in the workplace.

Schools typically adopt random drug testing to discourage illicit drug use among students. Many administrators hope that random testing will serve as a deterrent and give students a reason to resist peer pressure to take drugs. Drug testing also can help identify teens who are using drugs and can benefit from early intervention or treatment.

Today more public schools are considering extending the parameters of their drug testing to include random testing of the entire student population. This has raised concerns about invading students’ privacy rights among parents, students and academic leaders.

At least three states have shown some support for these concerns. New Jersey, Pennsylvania and Texas have found random, suspicion-less drug testing to be unconstitutional. In each of these states, random drug testing is permissible only when there is a demonstrated need.

A school or school district that is interested in adopting a student drug-testing program should seek legal expertise so that it complies with all federal, state and local laws. Parents who wish to know if their child’s school has legal permission to randomly drug screen students can consult the school, district or county student rights manual or code of conduct book.

Regulations concerning drug testing are complicated and evolving. If you have questions about your rights regarding substance abuse testing in either in your workplace or school, please contact me at 973-509-8500 x213 or email LFarber@LFarberLaw.com.

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

#drugtesting #substanceabuse #drugabuse

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