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Drug Testing During Hiring

No employer likes to hire someone who may be prone to using drugs or alcohol while at work. As a result, many private and some public employers now attempt to test prospective employees (and employees already on staff) for drug and alcohol use. These tests are not always legal, however. The following provides information on when, and whether, a drug test may be used in the pre-employment phase.

Testing and Employee Privacy

The U.S. Supreme Court has held that both blood and urine collection are minimally intrusive procedures which are not harmful to job applicants or employees when they are conducted in the context of an employment environment (such as where applicants or employees are required to go to a doctor's office to provide a sample) without direct observation by the tester. In other words, it may be an invasion of privacy for an employer to require a job applicant to provide a urine sample while other people are in the room watching. However, if there are concerns that an applicant will tamper with the sample, the employer may be allowed to have one other person of the same sex as the applicant present when the sample is given. It is vital that you consult with an employment law attorney before instituting any drug/alcohol testing policy for your business.

Federal Law

The major federal law governing the use of drugs and alcohol in the workplace is the Drug-Free Workplace Act of 1988. This Act basically states that any employer who receives federal grants or contracts must be drug-free, or it risks losing the federal funding. The Act does not, however, contain any provisions that specifically allow for workplace drug testing.

In addition to the federal Drug-Free Workplace Act, other federal laws also touch upon and concern drug use in the workplace, such the Americans with Disabilities Act (which classifies alcoholism as a protected disability) and the Family and Medical Leave Act.

Specific federal agencies or departments may also have drug-testing policies in place. For example, the Department of Transportation has regulations that require drug-testing of more than 8 million different employees, such as over-the-road truckers.

State Law

Each state has its own body of laws which concern workplace drug testing or monitoring. For example, Alaska has no mandatory drug-testing laws but does have voluntary drug-testing laws that employers must follow if they chose to conduct drug-testing of job applicants or employees.

In many states, employers have the legal right to test job applicants for drugs or alcohol provided the applicants know that the testing is part of the interview process for all employees. In most situations, the testing cannot be conducted until the applicant has been offered a position.

But even in states that have legalized the medical and/or recreational use of marijuana, employers may legally exclude job applicants who test positive for the herb in a pre-employment drug screening.

Selective Testing

An employer may face legal difficulties if it chooses to test only certain applicants for a position. In other words, an employer cannot pick and chose (based upon educational experience, demeanor, looks, or any other characteristic) which applicants it will test for drugs or alcohol. The employer must treat all applicants for the same job in a similar manner.

What Types of Tests are Permissible?

Most state statutes also limit the type of testing that may be performed, whether it be through urine, breath, blood, or hair.

Note: Hair testing is the newest method of drug testing and can accurately test for drug use within the previous 90 days, according to its proponents. Urine testing, on the other hand, generally only provides accurate results for the previous five-day period.

Covert Testing

If an employer tests an applicant in a covert manner, without the applicant's knowledge or consent, the employer can face serious legal difficulties. For example, an employer may not pick up stray pieces of hair that an applicant inadvertently left on a chair during the interview and test them for drugs unless the applicant knows the employer is doing so.

Testing Procedures

State statutes may also set forth the particular company or laboratory that must perform the actual testing. In recent cases, for example, state courts have held that employees who tested positive for drug use were nonetheless wrongfully discharged if the testing was not completed by an "approved" laboratory.

If an applicant or employee tests positive for drugs or alcohol, some state statutes allow for the employer to re-test that applicant or employee at the expense of the employee.

Reporting Testing Results

Under many state laws, an employer is required to exercise discretion in reporting positive test results. For instance, the law might provide that only those individuals who are on a need-to-know-basis should be told of the positive result. The result should not, obviously, be posted on the lunchroom bulletin board.

Legal Considerations When Establishing a Drug-Testing Policy

  • Employers who plan on conducting drug testing should, before the first test is ordered, establish a written policy governing when the testing will take place and how it will be performed. Having this information in place may help resolve any questions that arise in the future as to whether a particular test should be conducted, or whether it was conducted properly.
  • Employers should also establish what type of drugs will be tested for. For example, the employer may only wish to test for cocaine, or may also wish to test for opiates, amphetamines, and the other drugs for which testing is available.
  • Employers should also develop a written policy concerning what will happen to an applicant who tests positive for drug use. This type of planning can alleviate future issues concerning how applicants with positive results are handled. For many employers, positive results may mean that those applicants will automatically not be hired. Other employers may wish to give applicants a second chance or may, if such applicants are hired, ask that they participate in employer-sponsored drug or alcohol counseling as a condition of their employment.

Is Your Drug Testing Policy Legal, or Even Necessary? An Attorney Can Help

Initiating a drug-free workplace for your small business has its advantages but also presents certain risks, particularly if your drug-testing policies and practices fail to comply with applicable laws. The best way to ensure compliance, and ultimately success, is to work with an attorney. Get started today and contact an experienced employment law attorney near you.

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