Are Freelancers and Contractors Subject to Employee Drug Testing?

Drug testing in the workplace is a common practice for many businesses, especially those in industries with strict safety regulations. However, the legal landscape surrounding employee drug tests can vary depending on the type of worker. While you may have a very strict policy about drug testing for your employees, rules for freelancers and independent contractors may be different. So, can you apply your business’s drug testing policy to your freelance workers? Keep reading to find out.

Laws Impacting Employee Drug Tests

Employee drug testing laws actually vary by state, as well as by industry. In the United States, private employers generally have the right to require drug testing if they wish to, but they have to comply with federal and state laws that protect employee rights and privacy. Some states limit drug testing to only specific circumstances—pre-employment screening, post-accident testing, or testing only when there is a reasonable suspicion that the employee is using drugs. Other states have restrictions on randomized drug testing, or may require advanced notice.

Does It Apply to Freelancers and Contractors?

Independent contractors and freelancers are not considered employees under most labor laws. This means that they generally aren’t subject to standard employee drug testing policies, so you can’t require them to participate in the testing. However, there are 3 key exceptions to this rule:

1.      Safety-Sensitive Jobs: Some government agencies and private companies that handle government contracts can require drug testing for all workers, including independent contractors, if they perform safety-sensitive duties.

2.      Company Policies and Contract Agreements: As a business, you can include drug testing requirements in your contract with freelancers. If the contractor agrees to those written requirements, they can be subject to drug testing, even if they’re not employees.

3.      Industry-Specific Requirements: In industries like healthcare, construction, and transportation, businesses may be able to impose drug testing on all workers in order to stay in compliance with safety standards.

So, the final answer here is both yes and no: No, you cannot require freelancers and independent contractors to participate in employee drug testing if it’s not an industry requirement and it’s not already written in their contract. However, if your industry requires all workers to be tested, or if you choose to include mandatory drug testing in your contracts with your freelancers, then they can be subject to drug testing in Jackson, MS, if they wish to continue contracting with your business.