Failed a Pre-Employment Drug Test? What the Law Actually Says

This page explains what the rules say. It gives no advice on passing a test.

Part 1 — Two different worlds

Some jobs are covered by a detailed federal testing rulebook. Most jobs are not.

Which world you are in changes everything below.

Part 2 — The federal rulebook: DOT testing

The federal rulebook described here is 49 CFR Part 40, from the U.S. Department of Transportation.

Part 40 sets the procedures for drug and alcohol testing of safety-sensitive transportation workers — jobs like truck and bus drivers, airline pilots, and mariners.

Test reasons listed in Part 40

The standard test reasons listed in Part 40 (§ 40.14) are:

• Pre-employment
• Random
• Reasonable suspicion / reasonable cause
• Post-accident
• Return-to-duty
• Follow-up

A pre-employment test is one where a negative result is required before the person can perform safety-sensitive work. Section 40.23(g) treats pre-employment as a test where “a negative result is required.”

The DOT drug panel

The DOT drug panel is:

• Marijuana
• Cocaine
• Amphetamines
• Phencyclidine (PCP)
• Opiates

Plus four semi-synthetic opioids:

• Hydrocodone
• Hydromorphone
• Oxycodone
• Oxymorphone

A lab result is not the last step

A lab “positive” is not the last step.

A Medical Review Officer (MRO) — a licensed physician — interviews the person to look for a legitimate medical explanation, such as a valid prescription.

If a legitimate medical explanation is established, the MRO reports the result to the employer as NEGATIVE.

If not, the MRO reports it as POSITIVE.

Before the MRO reports certain medication or medical information to a third party, the person has up to five days to have their prescribing physician contact the MRO.

What a verified positive means

A verified positive means the employer must immediately remove the person from safety-sensitive functions (§ 40.23(a)).

A verified adulterated or substituted result counts as a refusal to test, with the same immediate removal (§ 40.23(b)).

Part 40 also provides for a split specimen: the employer may not wait for a split-specimen result before acting (§ 40.23(a) names the split specimen test).

The way back

The way back is a set process, and it applies before safety-sensitive work for ANY DOT-regulated employer (§ 40.23(d) and the DOT notice):

• Evaluation by a qualified Substance Abuse Professional (SAP) — the employer must give the person a list of SAPs in their area
• Whatever education and/or treatment the SAP requires
• The SAP decides whether it was successfully completed
• Then a negative result on a directly observed return-to-duty test
• Then directly observed follow-up testing for 12 to 60 months, as the SAP recommends

Part 3 — Everywhere else: non-DOT jobs

There is no single federal rulebook like Part 40 for most private employers.

Outside the DOT world, testing is mostly a mix of company policy and state law — and state laws vary widely from state to state.

One federal law still matters: the ADA

One federal law still matters: the Americans with Disabilities Act (ADA), enforced by the EEOC. What the EEOC says:

• A test for illegal drugs is NOT considered a medical examination under the ADA — so the ADA does not limit when an employer may give one. The ADA does not encourage, prohibit, or authorize drug tests.
• A person who is currently engaging in the illegal use of drugs is not protected by the ADA when the employer acts on the basis of that use. An employer may refuse to hire, or fire, a person for current illegal drug use.
• Employers may make employment decisions based on verifiable test results.
• The ADA’s employment rules cover employers with 15 or more employees.

Marijuana note

Marijuana is still on the federal DOT panel (Part 2 above), whatever a state’s own marijuana law says — and state laws on marijuana and testing vary.

Part 4 — What this page cannot tell you

Whether any one person keeps or gets any one job depends on which rulebook applies, the employer’s own policy, and state law.

This page states the rules only.

Sources

• U.S. Department of Transportation, Office of Drug & Alcohol Policy & Compliance — “DOT Drug Testing: Part 40 – Employee Notice” and 49 CFR Part 40 §§ 40.14, 40.23 (transportation.gov)
• U.S. Equal Employment Opportunity Commission — “The ADA: Questions and Answers” and “Federal Laws Prohibiting Job Discrimination: Questions and Answers” (eeoc.gov)