Employer Drug Testing Laws in Texas

There are no employer drug testing laws in Texas for private employers, although there may be workplace drug testing requirements or restrictions for some government employers, employers subject to DOT’s drug testing rules, companies with federal contracts or grants, and certain high-risk occupations.
Should you drug test your employees?
In most cases, the answer is yes.
You should already have in place a comprehensive drug testing policy for your employees. Doing so has many benefits, including avoiding employee lawsuits, frivolous unemployment claims, and workers’ compensation claims brought by employees who were under the influence when an incident occurred.
In this article, we will cover the basics of Texas workplace drug testing laws, including:

• What should be included in an employer's drug testing policy,
• How to win an unemployment claim brought by a former employee who was terminated for a positive drug test, and
• The impact of a drug-free workplace on workers’ compensation insurance in Texas.

Employer Drug Testing Policies
In most cases, Texas employers are free to drug test their employees or not require workplace drug testing, but there are many exceptions, including:

• The US Department of Transportation (DOT)’s mandatory testing guidelines,
• Contractual requirements,
• Requirements specific to federal contracts or grants,
• Insurance requirements, and
• Other statutory or regulatory requirements.

If you are not sure whether your company is 1) required to drug test employees or 2) restricted in the types of drug testing you can conduct, contact your Houston employment law attorneys at Murray-Lobb for advice specific to your location and industry.
If your company already has a drug-testing policy in place, you may consider having your employment law attorney review your company’s current policy for compliance with state and federal laws and to ensure that your company’s policy is accomplishing your goals.
What Should Be Included in an Employer Drug Testing Policy?
Your company’s drug-testing policy should emphasize the need for safety in the workplace, productivity, and quality assurance, and should address critical questions like:

• When employees will be drug tested – for example, random drug screens, routine drug screens, and post-accident drug screens,
• What will be considered a violation – are there acceptable levels of alcohol or marijuana (which is now legal under Texas law), or will your company have a zero-tolerance policy,
• Who will be tested – employers can choose to test all employees or only employees who are in high-risk jobs like drivers or heavy equipment operators, but employers should take care to apply the policy uniformly within those job categories to avoid discrimination claims, and
• What will the consequences be for a positive drug screen – will the worker automatically be terminated, or will there be a provision for rehabilitation followed by a probationary period and regular drug tests?

Although Texas law does not regulate workplace drug testing policies, employers should take care to apply the policy uniformly to all employees, safeguard employees’ test results, and avoid potential employee lawsuits for:

• Discrimination claims,
• Wrongful termination claims, and
• Claims for invasion of privacy.

Copies of the company’s drug-testing policy should be provided to all employees, and all employees should be required to return a signed copy of the policy.
What if an Employee Refuses to Sign the Policy?
What happens if an employee refuses to sign the drug-testing policy?
You can terminate an employee for refusing to sign, but you should carefully document the reasons for their termination.
For example, you could:

• Warn the employee – in writing and in front of witnesses – that failure to sign will result in termination,
• Have witnesses sign a document confirming that they observed employee X refusing to sign the acknowledgment of receipt of the drug-testing policy, or
• Call a mandatory staff meeting where all employees receive the policy, sign an acknowledgment of receipt of the policy, and have witnesses sign a document verifying that the non-signing employee refused to sign.

Consequences for a Positive Drug or Alcohol Test
The consequences for failing a workplace drug test should be clearly spelled out in the policy and should be uniformly applied to all employees without favoritism.
Although the consequences can be tailored to fit each unique workplace environment, the most common options are:

• Immediate termination after a second drug test using the gas chromatography/ mass spectrometry method confirms the initial results, or
• Rehabilitation is followed by a probationary period with regular drug screens.

When Will an Employee Be Drug Tested?
Employers can utilize random drug screens or “for cause” drug screens, but the method used should be clearly noted in the company’s drug-testing policy.
Options may include:

• Random drug screens for all covered employees at set intervals,
• Regular drug screens on a weekly or monthly basis,
• For cause “triggers” like reports from coworkers or supervisors of drug use or unsafe behavior,
• Post-accident testing –employers should take care to test the employee who caused the accident and not solely the employee who was injured, to avoid potential claims of workers’ compensation retaliation.

The circumstances that may lead to workplace drug testing should be clearly spelled out so there is no confusion for employees, supervisors, or courts that may ultimately decide legal issues arising from the test results.
Types of Drug Testing that are Permitted
Employers in Texas are free to test workers for any substances including alcohol, using any accepted methods for drug screens like urinalysis, blood, or hair follicle testing.
Find a Drug Testing Lab – Before Implementing the Policy
Before implementing your company’s drug-testing policy, you should locate and contract with a reputable, nationally certified lab.
To preserve your rights in employment claims and other court cases, you should get the lab to agree in writing that the lab will provide your company with copies of test results, including:

• The tests that were performed,
• The person who performed the test and their qualifications,
• The substances found and the amount of the substance that was present, and
• The complete chain of custody for the samples that were tested.

Can an Employee Who Was Terminated for a Positive Drug Screen Claim Unemployment in Texas?
Without a doubt, some employees who are terminated due to a positive drug screen will file unemployment claims, workers’ compensation claims, and lawsuits related to their termination.
To defeat frivolous claims brought by disgruntled former employees, your company should
1) have a comprehensive workplace drug-testing policy
2) maintain careful documentation in each case where an employee is terminated
3) consult with your Texas employment law firm before terminating the employee.
Documentation Needed to Defeat an Unemployment Claim
When an employee files an unemployment claim after their termination, there are very specific guidelines that your company must follow to defeat their claim.
For example, your company must be prepared to provide the Texas Workforce Commission (TWC) with:

• Your company’s drug testing policy, including an acknowledgment of receipt signed by the employee,
• Evidence that the employee consented to drug testing under the policy,
• Documentation of the chain of custody of the employee’s sample that was tested,
• Documentation from the lab that the initial test was confirmed by a second test using the gas chromatography/ mass spectrometry method, and
• Test results are expressed in terms of a positive test result above a stated threshold.

The employee claiming unemployment will deny the drug use, and the TWC will side with the employee unless your company can prove the positive test results.
Ensure that each employee signs a release form authorizing the disclosure of the test results to 1) the employer
2) any courts or government agencies involved in claims or lawsuits brought by the employee.
Drug-Free Workplaces and Workers’ Compensation Insurance in Texas
Unlike some other states, there is no discount on workers’ compensation insurance premiums for employers in Texas who maintain a drug-free workplace.
Please feel free to contact one of our Murray Lobb attorneys to obtain our legal advice regarding employer drug-testing policies in Texas.
​We also remain available to help you with all your general corporate, construction law, business, and estate planning needs.