Do we have to pay employees for their time spent going to mandatory drug testing?

Yes, the time spent by an employee getting a drug test at the direction of the employer is considered time worked under the Fair Labor Standards Act (FLSA). Although the FLSA does not expressly mention time spent at drug testing, the “hours worked” regulation regarding time spent in meetings, lectures or training provides guidance to the employer. Under the FLSA regulation 29 C.F.R. §785.27, attendance at lectures, meetings, training programs and similar activities would only not be counted as working time if all four of the following criteria are met:

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

If an employer mandates that an employee attend an appointment to be drug tested, then time spent obtaining the drug test is not voluntary; therefore, one of the four criteria above is not met. The employee is not taking the drug test voluntarily. So the time spent taking the drug test is hours worked, and the employer must pay an employee for the time. The DOL elaws Hours Worked Advisor provides guidance on the subject. In contrast, employers are not required to compensate applicants for time spent on pre-employment drug testing, as applicants are not considered employees subject to the FLSA hours worked regulation.