Drug Testing During Hiring

Even though marijuana use is more acceptable these days, employers don't want new hires who will show up in a haze for their first day on the job. An impaired worker presents a great liability if a job requires employees to operate heavy equipment or work with hazardous materials. One way to avoid problems is screening out individuals prone to abuse of drugs or alcohol during the hiring process.

Small-business owners are not required to test workers. Private employers may set any workplace policy they choose. Federal and state laws limit drug testing during the hiring process. Improper pre-employment drug tests can lead to legal action and fines.

Pre-Employment Drug Tests

Each state has its own requirements for pre-hire drug testing laws. No state has mandatory drug screening. Most follow federal guidelines for pre-employment testing. The general requirements for pre-employment drug screening include:

• The prospective employee must receive a copy of the company's drug and alcohol policy.

• The job applicant must have a chance to disclose any prescribed medications and prior drug use that might influence the test.

• In some states, a conditional offer of employment must precede drug testing.

• All applicants must submit to testing with a reliable, standardized test. Blood, hair, and urine testing are all considered reliable for employment screening.

• Some states may want a certified lab to carry out the testing. Your workers' compensation insurance may want a specific lab to do all medical work. Some union contracts may have testing requirements for union workers.

Covert testing, such as swabbing the applicant's coffee cup after they leave, is illegal. Prospective employees must know that they are subject to drug testing. Selective testing based on appearance, attitude, or demeanor is also prohibited. The Americans with Disabilities Act (ADA) prohibits pre-employment alcohol testing.

Privacy Concerns

The U.S. Supreme Court has ruled that the applicant's privacy must be protected during the blood or urine collection process. Business owners should get legal advice on the best way to handle drug and alcohol testing when hiring employees.

Human resources should use discretion when reporting drug and alcohol test results. The only person who should know is the applicant. If your company policy requires federal reporting, it should be clearly stated in the employee handbook. You should explain this to the applicant before the test.

Marijuana

Small-business owners may encounter prospective employees who have medical marijuana cards or admit to using recreational marijuana. Drug tests can detect THC, the marijuana metabolite, in urine for at least a few days — sometimes for more than a month. This means your drug test results may show nothing more than the applicant's presence at a party the weekend before the drug test.

Despite the growing legalization and decriminalization of marijuana, it remains a Schedule I drug as of 2023. Possession is a federal offense. Employers may legally exclude applicants who test positive for marijuana in a pre-employment screening. If an employer chooses to disregard marijuana on drug screening, they should discuss possible legal repercussions with an employment law attorney.

Federal Laws on Drug Testing

The Drug-Free Workplace Act of 1988 states that employers or companies receiving federal grants or contracts over $100,000 must establish a drug-free workplace program. The act does not require random drug testing of employees. It requires covered companies to:

• Have a formal drug-free workplace policy statement that spells out the consequences of violating the policy

• Establish a drug-free awareness program for all employees

• Ensure employees know and understand the personal reporting requirements. Workers must notify their employer of any criminal drug violation within five calendar days. Workers must also understand that the employer must report the violation to the federal contracting agency. The employer must take corrective action against the employee

• Establish corrective measures for employee violations, such as disciplinary actions or referral to a rehabilitation program

Other federal agencies have their own drug-testing policies. The Department of Transportation (DOT) has specific drug testing programs for long-haul truckers and other safety-sensitive positions.

Establishing a Legal Drug-Testing Policy

All employers planning on workplace drug testing should get legal advice before doing any drug tests or background checks. Employers may carry out employee drug testing but should do so correctly to avoid legal issues and potential lawsuits.

• Your policy should state the subjects and purpose of the test. For instance, your business insurance may require post-accident testing. You may want workers in safety-sensitive positions, such as heavy equipment operators, to have regular drug tests.

• The policy should explain the types of drugs you are testing for and provide exemptions for medical use of similar medications. Common drug tests include cocaine, opiates, amphetamines, and phencyclidine (PCP). Workers taking opioids for pain management or stimulants for ADHD-related disorders must have medical exemptions in their files.

• Your policy should detail what will happen to employees with positive drug tests. In the case of new hires, it may mean the individual does not get the job. For existing workers, your policy must follow the ADA, which recognizes substance abuse as a disability.

In general, you may test employees if you have reasonable suspicion a worker is under the influence of drugs or alcohol on the job. A workplace accident, excessive absenteeism, or co-worker reports may be enough to justify testing.

Ask an Attorney to Review Your Drug Policy

A drug-free workplace is a good idea for a small business. As long as your drug policy complies with state and federal law, you should have no problems. Contact an experienced employment law attorney in your area, and be sure your policies are ready.