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Q: contract employment and THC/drug testing in TX ( Answered 5 out of 5 stars,   5 Comments )
Subject: contract employment and THC/drug testing in TX
Category: Business and Money > Employment
Asked by: reluctant_proffsnl-ga
List Price: $45.00
Posted: 29 Jun 2006 12:05 PDT
Expires: 29 Jul 2006 12:05 PDT
Question ID: 742078
I am a chronic marijuana user; once a day for about a year. It has not
caused me any social, marital, academic or mental difficulties; it did
though, alleviate my drug resistant depression and sleep disturbance.
I am not using any other legally inappropriate chemicals.
I am an engineer with a recently acquired master?s degree. Recently I
have been offered contract employment with a small company doing a
project for a big oil company. This small company is in the process of
becoming independent from a relatively bigger corporation. So there
are three companies involved: The small one I will work for, it?s
parent corporation, and the oil corporation who contracted out the
project I will work on to this intermediary corporation. Boundaries
are still fuzzy. I was required to start a DBA to accept this
position, so legally I am a ?consultant?, a separate legal entity as I
Keeping in mind that I live in TX, could you answer the following questions: 
How likely is it for an ?independent contractor? to be drug tested,
considering the circumstances of this employment?
If it is very likely, are there any legal steps I can take or any
legal arguments I can employ to avoid the test other than 4th and 5th
amendment violations?
If no, are there any valid reasons for drug tests to be delayed
without arousing unnecessary excitement?
Subject: Re: contract employment and THC/drug testing in TX
Answered By: wonko-ga on 05 Jul 2006 13:56 PDT
Rated:5 out of 5 stars
My research, including obtaining information specifically relating to
Texas, suggests that you are unlikely to be subjected to drug testing
as an independent contractor unless your job is subject to The
Drug-free Workplace Act, Department of Defense regulations, or the
Department of Transportation regulations.  As an independent
contractor, the employer faces less liability for your actions, which
is why they are requiring you to have liability insurance.  I could
not locate any instances where a drug test was required to receive
liability insurance.  However, if the insurer were to become aware of
your drug use and you made a claim, you may have a very difficult time
getting the insurer to pay.

Other than safety or medical care issues such as would occur in the
event of an accident, a private company may require a drug test at any
time and may use your failure to cooperate to terminate your contract
unless it provides otherwise.  You are certainly entitled to refuse to
be tested, or ask it to be postponed, but the company can end your
contract if they are dissatisfied with your response for any reason
unless your contract is very unusual.  If you will be subject to a
drug testing policy, you should be provided it in writing at the time
you sign a contract with the company.

In my experience, because drug testing is expensive, it is rarely
performed on independent contractors unless required by law.  Provided
your conduct does not create suspicions, and assuming the job you will
be performing does not make drug testing a requirement, I suspect you
are unlikely to be tested.

I hope the information below further informs you regarding drug
testing issues relating to employment.




"The major laws affecting the workplace are: 

(1) The Drug-free Workplace Act which requires all employers with
federal contracts of $25,000 or more to maintain a drug-free
workplace, to establish and inform employees of its drug policy,
penalties of violation, etc.

(2) The Department of Defense regulations which apply to employees in
sensitive positions, and require a drug policy, an employee assistance
program (EAP), training, testing, etc.

(3) The Omnibus Transportation Employee Testing Act, which (1)
mandates drug-testing for all holders of CDLs (commercial driver's
licenses) and persons in safety-sensitive jobs, including part-time,
full-time or temporary employees with CDLs; truck and bus drivers;
railroad and airline employees; and employees of federal, state and
local governments, schools, public works, utilities, churches and
civic groups who hold a CDL; (2) prescribes test procedures to assure
accuracy and privacy of the results; (3) establishes rules for
rehabilitating drivers in violation; and describes sanctions for
compliance failure. Canadian companies who send drivers into the U.S.
must also comply with U.S. mandated drug-testing regulations."

"G-19 - EMPLOYMENT PRACTICES LIABILITY" Practical Risk Management

"The U.S. Constitution does not prohibit drug testing of employees.
However, in the U.S. Supreme Court case of Treasury Employees v. Von
Raab, 489 U.S. 656 (1989), the high court ruled that requiring
employees to produce urine samples constituted a "search" within the
meaning of the Fourth Amendment to the U.S. Constitution. Therefore,
all such testing must meet the "reasonableness" requirement of the
Fourth Amendment (which protects citizens against "unreasonable"
searches and seizures). The Court also ruled that positive test
results could not be used in subsequent criminal prosecutions without
the employee's consent.

The other major constitutional issue in employee drug testing involves
the Fifth Amendment (made applicable to the states by the Fourteenth
Amendment), which prohibits denial of life, liberty, or property
without "due process of law." Since the majority of private-sector
employees in the United States (excepting mostly union employees) are
considered "at-will employees," an employer need not articulate a
reason for termination of employment. However, under certain
circumstances, the denial of employment or the denial of continued
employment based on drug test results may invoke "due process"
considerations, such as the validity of the test results, the
employee's right to respond, or any required notice to an employee.

Finally, under the same constitutional provisions, persons have a
fundamental right to privacy of their person and property. Drug
testing, although in itself deemed legal, may be subject to
constitutional challenge if testing results are indiscriminately
divulged, if procedures for obtaining personal specimens do not
respect the privacy rights of the person, or if testing is
unnecessarily or excessively imposed."

"TEXAS: Under Tex. Code Ann. 411.091, the "Policy for Elimination of
Drugs in the Workplace," employers with fifteen or more employees with
workers' compensation insurance coverage are required to adopt a
policy of their own choosing but directed at the elimination of drug
abuse and its effects in the workplace."

"Drug Testing" eNotes (2006)

"Some occupations actually mandate such checks, including industrial
tractor and truck operators, material movers, child-care workers,
teachers, private and corporate investigators, state and federal
personnel and police officers."

"Hiring Your First Employee" By Erika Welz Prafder, Entrepreneur
(March 1, 2006),4621,326646,00.html

"7. Marijuana Initial Test Level

Many respondents concurred with lowering the initial test level for
marijuana metabolites from 100 to 50 ng/mL as proposed in section
2.4(e). However, one commenter claimed that the lowered cutoff
concentration would identify the occasional user. The intent of
Federal Workplace drug testing programs is to identify individuals who
use illegal substances regardless of whether they are regular or
occasional users. Lowering the initial test level should increase the
ability to detect any use of marijuana.

Another commenter questioned the impact that might result by the
lowered cutoff concentration for those individuals who are exposed to
passive inhalation (i.e., breathing the smoke exhaled by another
individual smoking marijuana cigarettes). The Department does not
believe that passive inhalation is a reasonable defense or that
significant exposure can occur through passive inhalation to cause a
urine specimen to be reported positive. A comprehensive study of
passive inhalation conducted at the National Institute on Drug Abuse's
Addiction Research Center in Baltimore (see Cone, E.J., et al.,
Passive Inhalation of Marijuana Smoke: Urinalysis and Room Air Levels
of Delta-9-Tetrahydrocannabinol, Journal of Analytical Toxicology, 11:
89-96, 1987) indicates that it takes extensive exposure to extremely
high concentrations under unrealistic conditions to cause a positive
result; therefore, passive inhalation is not a reasonable explanation
for a positive result."

"Mandatory Federal Workplace Drug Testing Guidelines" (2006)

"Under Texas and federal laws, there is almost no limitation at all on
the right of private employers to adopt drug and alcohol testing
policies for their workers.

Government employers are not so free, due mainly to court decisions
holding that testing employees without showing some kind of compelling
justification violates government employees' rights to be safe from
unreasonable searches and seizures. Drug testing is not for everyone.
A company should do it only after careful consideration of many
factors, including applicable statutes and regulations, contract or
insurance requirements, and combatting some perceived problem with
substance abuse among the workers. Drug testing, for example, may be
mandated for some types of employees, as is the case with workers
subject to U.S. Department of Transportation mandatory testing
guidelines. Some federal contracts and grants may require employers to
adopt drug-free workplace policies and possibly even to provide for
drug-testing of employees. Other employers may be under no legal
obligation to do testing, but feel it is needed due to reports that
some employees may be unsafe due to being under the influence of drugs
or alcohol. Regardless of the reason for testing, it is essential to
carefully draft the policy and consider the various legal issues."

"Like any policy, a drug and alcohol policy should be given in writing
to all employees. Employees should sign a written acknowledgment that
they have received a copy of the policy. Employers usually make
signing such a policy a condition of being hired. While it is common
for such a policy to be part of an overall policy manual, it is
probably best to have each employee sign a separate form consenting
specifically to the search and testing policy."

"It is legal to test some, but not all, employees, but an employer
must be careful. The policy should cover all employees in specific job
categories. For example, the company could make all workers who
operate machinery or vehicles subject to drug testing, but not require
testing of clerical staff. Some employers test only those employees
whose jobs are inherently risky. Some companies would not even do drug
testing were it not for certain laws, such as the DOT drug testing
regulations <> for long-haul truck
drivers, oil and gas pipeline workers, and so on. Some contracts
specify that workers coming into a client's facility will be subject
to drug testing. If that happens, the contractor does not also have to
test its other employees who do not go onto that client's premises.
The main thing is to decide who will be covered, and then to enforce
the policy in an even-handed way."

"An employer should never physically force an employee to submit to a
search, due to the risk of civil and criminal complaints involving
assault, battery, false imprisonment, invasion of privacy, and
intentional infliction of emotional distress. However, employers may
provide in the policy that employees who refuse to submit to a
reasonable search under the policy, or who refuse to undergo a drug
test, will be subject to immediate termination. In case of such
refusal, termination should not occur until the employee has been
reminded of the policy and of the risk of termination for

"Drug Testing in the Workplace" Texas Workforce Commission

Search terms: drug testing of independent contractors; "liability
insurance" "drug test"; "drug test" "independent contractor"
reluctant_proffsnl-ga rated this answer:5 out of 5 stars and gave an additional tip of: $10.00
Thank you for your focused and detailed research. I have actually
started working before I received the answer, and it seems unlikely
that I will be asked to take a test. But hopefully we have contributed
valuable information to "" that will help many more
people in the future.

Subject: Re: contract employment and THC/drug testing in TX
From: pinkfreud-ga on 29 Jun 2006 12:15 PDT
I've been doing independent contract work for over a decade, and I
have never been asked to take a drug test, a polygraph, or any other
such screening. Unless the work will involve operating vehicles or
equipment, I don't think it is at all likely that you'll run into drug
Subject: Re: contract employment and THC/drug testing in TX
From: pinkfreud-ga on 30 Jun 2006 10:44 PDT
One additional thought: it's possible that you might be required to
pass a drug screening if you need to be bonded in order to do this
Subject: Re: contract employment and THC/drug testing in TX
From: reluctant_proffsnl-ga on 30 Jun 2006 10:53 PDT
I was required to buy "General Liability Insurance"; I will be insured
for $1M. Is that what you mean by "bonded"?
Subject: Re: contract employment and THC/drug testing in TX
From: pinkfreud-ga on 30 Jun 2006 13:21 PDT
If you are required to be insured, that probably increases the
likelihood of drug testing. But it doesn't make it a certainty.
Subject: Re: contract employment and THC/drug testing in TX
From: ripley72-ga on 31 Aug 2006 09:26 PDT
Here are some of the ommissions in this answer.  (Sorry, I won the
legal research award, so I think I'm hot stuff.)  The answer does not
mention that Drug-Free Workplace Act *requires* employers to disclose
drug-testing policies at a specific time, with a specific degree of
... specificity.  This is often a source of circumvention.  (The
passive smoking argument?  I'm always astonished at what defendants
will say.)

Second, there is little to no recent analysis of how the Courts of
Appeal (the Federal Courts immediately below the S.Ct.) have ruled. 
Because the S.Ct. only takes cases every now and then, the Courts of
Appeal (for the Ninth Circuit, the First Circuit, etc.) often end up
settling Federal law *for their jurisdictions.*  In this matter, case
law is more significant than statutory or positive law.

I think also my problem is with the question.  Is it relevant whether
the questioner will be *asked* to take a drug test?  Or is it more
relevant what the questioner can *do* if he should be asked?  The
answer does not address that.


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