Ask HR: Should an Employer Pay an Employee to Undergo Drug Testing?

SHRM President and Chief Executive Officer Johnny C. Taylor, Jr., SHRM-SCP, answers HR questions each week for USA Today.

Do you have an HR or work-related question you’d like him to answer? Submit it here.

My job as a driver for a medical testing laboratory requires that we be drug tested fairly regularly, three to six times a year. However, when I go for testing, I must do so on my own time. Since it is a condition of employment, should I be paid during the test and reimbursed for the mileage incurred? –Florence

Johnny C. Taylor, Jr., SHRM-SCP: Yes, you should be paid for the time you spend traveling to and from the testing facility and being drug tested. Compensation for mileage depends on the state you live in.

First, let’s dive deeper into being paid for your time to drug test. The federal Fair Labor Standards Act (FLSA) provides guidance to help employers determine when to pay employees. While the FLSA does not directly address drug testing, the following four criteria must all be met for an activity to be excluded from work time:

• Attendance is outside normal hours.
• Attendance is voluntary.
• The activity is not job-related.
• No other work is concurrently performed. 

If any of the four criteria are not met, employers must pay for that time. Since your employer mandates drug testing, it is not considered a voluntary activity, and you must be paid.

Federal regulations do not require employers to reimburse employees for mileage, but many state regulations do. For instance, in California, employers must reimburse employees for all necessary expenditures incurred by employees at their employer’s direction.  

Check your state’s reimbursement regulations and review your company expense reimbursement policy. Even in states that do not have employee expense reimbursement laws, many employers have policies that allow for mileage reimbursement for work-related trips. If you have additional questions, I encourage you to contact your HR team for clarification. 

My wife was fired from her position as a senior program manager at a nonprofit organization. Most people there are Democrats or left-leaning, and they recently discovered she is a registered Republican. We suspect this had something to do with some of her colleagues recently asking her about her political views. Is it ever legal for an employer to terminate someone based on political beliefs? –Diop

Johnny C. Taylor, Jr., SHRM-SCP: I’m sorry to deliver more bad news, but your wife’s termination probably doesn’t violate any laws. Unfortunately, federal law does not protect employees from termination based on political affiliation. And while there are a few jurisdictions that protect political beliefs, activities or affiliation, the legality of terminating an employee in even these circumstances varies and is difficult to prove. Here are some other considerations: 

1.     At-will employment states: In every state except Montana, employment is at will, allowing employers to terminate employees for any or no reason at all, subject to federal anti-discrimination law, which does not provide protection as described above.

2.     State-specific protections: Some states, such as California, have laws prohibiting employers from making job decisions based on an employee’s political activities or affiliation. To understand your wife’s rights, it’s crucial to check the specific laws in the state where she worked.

3.     Title VII of the Civil Rights Act: While political beliefs are not explicitly protected under federal law, if the termination is connected to a protected class under Title VII (race, color, religion, sex or national origin), it could be considered discriminatory. For instance, if a political belief is tied to a religious belief, and the termination is based on that, the employee might be protected.

4.     Workplace conduct: Employers often take action not solely for political beliefs but for how those beliefs are expressed in the workplace. If an employee’s expression of political beliefs creates a hostile work environment, threatens others or violates company policies on conduct, it could lead to disciplinary action.

Given the complexity of the situation, it would be advisable for your wife to consult with an employment attorney to discuss the specifics of her case and the applicable laws in her jurisdiction. An attorney can provide personalized guidance based on the details surrounding her termination. It’s important to gather any relevant documentation or evidence supporting her case, such as communication records or details about the circumstances leading to her termination.

Understanding the legal landscape and seeking professional advice will help your wife navigate this challenging situation and determine the best course of action.