Can an employee be drug tested without notice due to a change in policy?

UPDATED: Aug 3, 2011

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Can an employee be drug tested without notice due to a change in policy?

When a part-time employee was hired, he was told he would not be drug tested because he doesn’t receive the same benefits as full-time employees. A new boss came into office and wants to only drug test that part-time employee. The employee was never told of any policy change. They gave him an ultimatum in office to either take the test or be fired. There was no warning, no informing the employee of any policy change subjecting part-time workers to drug testing. Is this entrapment or illegal in any way?  Is this a violation of privacy?

Asked on August 3, 2011 West Virginia


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Under the laws of all states in this country, an employee can only be drug tested if there is an office policy in place allowing such when the employee is hired and the employee signs this office policy. Absent this, the employer cannot require an employee to take a drug test. If the employee refuses to take a drug test where he or she never agreed to have one, the employer very well could be subject to a legal action.

The required retroactive drug test would be an invasion of the employee's consitutional right to privacy and could very well be illegal.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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