Texas Drug Testing Laws 2024

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Texas Drug Testing Laws 2024

There are currently no specific laws on workplace drug testing in Texas. Therefore, private employers can establish and implement drug testing protocols and procedures with little to no limitation. However, the Texas Workforce Commission (TWC) publishes and regularly updates workplace drug testing guidelines for employers to assist them in creating drug-free workplace policies to protect their interests and those of their employees. Per these guidelines, employers are expected to provide employees with written copies of existing, newly created, or amended drug policies. They must also inform employees of possible disciplinary actions for violations and ensure that drug tests are conducted fairly and non-discriminatorily.

Certain limitations are placed on the kinds of tests public sector employers in Texas can conduct on their employees due to court decisions like Skinner vs. Railway Executives Association, et al. Also, municipalities in the state do not have the authority to create local ordinances regarding workplace drug testing.

What Kinds of Drug Tests Can Employers Conduct in Texas?

Texas employers commonly screen employees for illegal and controlled substances like cocaine, amphetamines, PCP, opiates and opioids, meth, MDMA, barbiturates, peyote, and marijuana. There are currently no restrictions on the kinds of drug tests employers can conduct in the state. Notably, for marijuana testing, many employers usually require employees to provide a urine sample. However, saliva, blood, and hair samples may also be collected, depending on the test method used. Regardless, drug tests for marijuana check for THC metabolites.

A workplace drug policy usually indicates the kinds of drug testing employees may be subject to. In Texas, they include the following:

• For Cause/Reasonable Suspicion Tests: These drug tests are usually conducted on employees who display observable signs of impairment or have documented history of unsafe work behavior and on-the-job marijuana/drug use
• Pre-employment Tests: Job candidates may be required to undergo and pass a pre-employment test as a condition of employment
• Post-accident Tests: Employees involved in workplace accidents are usually subjected to post-accident drug testing to determine whether drug (or alcohol) use is fully or partly responsible for the incident
• Annual Physical Tests: Some employers include drug screenings as part of their yearly physical examination for employees
• Post-rehabilitation/Probationary Tests: These tests are conducted on employees who have completed a rehabilitation program to support and ensure their commitment to remaining drug-free
• Random/Suspicionless Tests: These drug tests are conducted at intervals determined by the employer, without prior notice to employees, and usually without suspicion of drug use or abnormal behavior. Employees are selected using an unpredictable but fair and non-discriminatory process

Can Employers Do Random Drug Testing in Texas?

Yes, employers in Texas can do random drug testing. However, the nature and scope of these tests depends on the employer. Currently, there are no laws specifying the kinds of tests Texas-based employers may conduct on their employees. Private employers who implement drug-free workplace policies are free to include random drug testing procedures in their workplace drug policies. Notwithstanding this, employers are expected to ensure that random drug testing procedures are fair, non-discriminatory, and consistent among all employees.

Unlike private employers, government employers in Texas must have compelling justifications before conducting random drug tests on employees. Otherwise, a public employer will violate an employee’s right to safety from unreasonable searches and seizures. However, employees in safety-sensitive and security-sensitive positions are usually exempt from this.

What Happens if You Fail a Drug Test in Texas for a Job?

The penalties for failing a drug test in Texas vary by employer and are usually spelled out in their workplace drug policy. The penalties can include:

• Rescission of job offers
• Mandatory participation in a drug rehab program and subsequent probationary drug testing for a predetermined duration
• Suspension
• Outright job termination
• Loss of unemployment benefits

There are very few legal protections available to employees who violate their employer’s workplace drug policy in Texas, especially if the employee had previously consented to be subject to drug tests. Nevertheless, if you are fired for failing a drug test, it is advisable to seek guidance from a licensed attorney, especially under the following circumstances:

• The employer did not properly communicate their workplace drug policy with you before the test
• You were unfairly singled out for the drug test
• The employer’s policy is discriminatory
• The testing procedure violated any of your civil rights

Can I Be Fired for Refusing a Drug Test in Texas?

Yes, you can get fired for refusing a workplace drug test in Texas. Employers in the state are permitted to enforce drug-free/zero-tolerance workplaces and sanction employees who violate their workplace drug policies. Thus, if an employer’s workplace drug policy includes drug testing, any employee who refuses to submit to tests faces immediate termination or other sanctions provided in the employer’s policy. However, per the TWC’s workplace drug testing guidelines, employers are advised to remind employees of the possible sanctions for refusing workplace drug tests before actually firing them for non-compliance. Employees fired for refusing drug tests in Texas have little legal ground to contest the termination unless they can prove that the test would have done any of the following:

• Violated their civil rights
• Violated their right to privacy
• Constituted harassment on the employer's part

Can You Get Fired for Failing a Drug Test with a Medical Card in Texas?

Having a valid medical marijuana prescription in Texas does not protect employees from being fired for failing a workplace drug test. As such, even though employers are required to make reasonable workplace accommodations for employees with disabilities that may require the use of medical marijuana, they still have the discretion to maintain drug-free workplaces. Therefore, any employee or job applicant who tests positive for marijuana during a drug test can get fired or have their job offer rescinded, even with a medical marijuana card or prescription.

Can Employers Conduct Drug Tests on Applicants in Texas?

Employers in Texas can conduct drug tests on job applicants at any point in the recruitment process. Nonetheless, even though employers are given discretion on how they choose to conduct drug tests, they are expected to inform job applicants of the possibility of subjecting them to drug tests. They must also get job applicants’ consent before conducting drug tests. The Texas Workforce Commission advises employers to ensure that their drug testing procedures and methods are fair, non-discriminatory, impartial, and consistently applied to all applicants.

Is Pre-Employment Drug Testing Allowed in Texas?

There are no Texas pre-employment drug testing laws or statutes prohibiting or mandating employers to drug test successful job applicants before they resume work. Nevertheless, many employers in the state (private and public) choose to do this. When conducted, new hires are required to pass pre-employment tests as a condition of their employment. Be aware that employers who wish to conduct pre-employment drug tests on prospective employees are generally expected to inform them of this employment prerequisite.

Does Texas Allow Public Agencies to Submit Employees to Workplace Drug Tests?

Public employers in Texas can implement workplace drug policies requiring employees to submit to drug testing. However, state agencies that wish to implement any drug testing program must ensure that the program does not violate their employees' privacy rights, as well as their Fourth Amendment right against unreasonable searches.

In Texas, public agencies in local municipalities are generally restricted from conducting random drug tests on their employees without compelling justification. However, this restriction is waived for employees in safety and security-sensitive positions where even a brief loss of focus can lead to severe harm and disastrous outcomes. Examples of employees in this category include law enforcement officials who carry arms, commercial drivers, and individuals who operate heavy machinery.

Can Employers Choose to Create Drug-Free Workplace Policies?

Texas has no drug-free workplace law; employers are neither required to nor prohibited from creating drug-free workplace policies. Nonetheless, the Texas Workforce Commission provides guidelines for employers who choose to do so. Employers are advised to follow these guidelines to make their drug-free workplace policies fair, non-discriminatory, legally defensible, and well-implemented.

Employees Exempted From Texas Workplace Drug Testing Laws

While Texas does not currently have a specific workplace drug testing law, public employees are considered exempt from random workplace drug testing (they may still be subject to other kinds of drug testing). However, random drug testing exemption does not include the following:

• State and municipal employees in safety-sensitive and security-sensitive positions, such as law enforcement officers and public transporters
• Employees in federal agencies located in Texas. These individuals must comply with federal workplace drug testing requirements
• Individuals with commercial driver's licenses
• Employers with federal contracts or grants

What are the Requirements for Drug Testing Labs in Texas?

There are no statutory requirements on the kinds of drug testing labs Texas employers may contract to conduct drug tests on their employees or prospective hires). However, it is usually a good idea to use testing labs accredited and certified by authorities like the Substance Abuse and Mental Health Service Administration (SAMHSA) and the College of American Pathologists (CAP) for workplace drug testing.