Creating a fair drug testing program in 2023 comes with new challenges and questions. Don’t ask Google; save your questions for us! MedPhysicals Plus is here to help you navigate drug and alcohol testing.

Some drugs may be legal, but they still require a prescription. For non-federal positions, the law on whether employers can refuse to hire someone with a legal prescription is nuanced.

On the one hand, employers have the right to refuse to hire someone if they have a legal prescription and would not be able to do the job safely due to side effects or some other factor related to their medication.

On the other hand, laws like the Health Insurance Portability and Accountability Act (HIPAA) and the Americans with Disabilities Act (ADA) prevent employers from refusing to hire someone because they have a certain medical condition or take certain legally prescribed medications.

This is the case at the state level. On the federal level, positive drug test results that are explained by a legitimate medical explanation, such as a valid prescription, will not be reported to a federal agency, the Substance Abuse and Mental Health Services Administration (SAMHSA).

Nearly 60% of American adults take at least one prescription drug.

In summary, the ADA typically protects job candidates’ use of prescription or over-the-counter drugs for disabilities. Simply testing positive shouldn’t result in a denial of a job offer. If a drug is detected, applicants should be able to show they have a valid prescription. To address concerns, employers can ask for a doctor’s documentation confirming the applicant can safely perform the job with or without accommodations while on the medication. If, later, the employee misuses the drug or if it affects their performance, the employer can seek another medical evaluation (Spiggle Law).

Although marijuana is legal in the state of Alaska, many jobs in the state, such as ones through the Department of Transportation (DOT), are federal, and the drug test would automatically fail if you tested for marijuana. As a federal employer based in Alaska, you have a right to test for marijuana or weed, and in order to successfully implement this, you should also have a drug-free workplace policy in place.

What can an employer ask an employee about prescription drug use?

For the vast majority of positions, employers may not ask job applicants about prescription drug use, regardless of the job, prior to making an offer of employment.

CFR 382.213 of the Federal Motor Carrier Safety Act indicates that drivers in safety-sensitive positions may be required to disclose the use of controlled substances, though there are some exceptions to this rule. Similarly, the Federal Aviation Administration has issued guidance requiring pilots and other aircraft-related, safety-sensitive positions to disclose prescribed medications (The Society for Human Resources Management SHRM).

See this handout from SAMHSA for employers on prescribed drug use.

Navigating the complexities of drug testing, particularly concerning prescribed medications, is crucial in today’s business world. If you’re an employer seeking clarity and a fair approach to drug testing in your organization, partner with experts who understand the nuances. Whether you’re starting from scratch or refining an existing program, we’re here to guide you every step of the way. Call or email Medphysicals Plus, and let’s build a drug testing strategy that aligns with your company’s values and needs.