Although more and more employers seem to be drug testing job applicants and current employees, it is a new and still risky practice. An evolving patchwork of federal and state laws are trying to balance employee privacy against the employer's right to maintain a drug-free workplace.
Employee drug testing generally falls into five categories:
- Applicant testing (the most common form)
- Random testing (frequently used for safety or security-related jobs)
- Post-accident testing (to determine whether drugs were involved in causation)
- Scheduled testing (during routine physical examinations)
- Treatment-related testing (to monitor employee efforts to remain drug free after a treatment referral)
No employer is required to perform drug testing. If you want to test job applicants, do it after an offer is extended. This is especially important for companies with more than 15 employees, and thus subject to the Americans with Disabilities Act (ADA). As it is necessary to ask about any prescription medications an individual is taking before conducting a drug test, an employer should protect against claims that an offer was not extended because an applicant was taking legitimate, prescribed drugs. Inform the candidate in advance that drug screening is a standard part of the hiring process and be sure that other candidates are similarly tested. Get the prospective employee's advance agreement in writing. And make sure a reputable, state-certified lab conducts the test.
Before setting up any drug-testing program, speak to an attorney to ensure that your program complies with relevant state and federal laws. While many states do not address drug testing, many others do and in some cases severely limit an employer's right to require drug tests (in Minnesota, for example, random testing can only be required of employees in safety-sensitive positions and professional athletes.)
Your policy should be clear, written and communicated to everyone in the company. If not, you could be vulnerable to employee litigation. Employers often terminate current employees for refusing to take a drug test and wind up defending lawsuits for wrongful discharge, invasion of privacy, defamation, assault and battery, false imprisonment, and even discrimination in some cases.
Be careful and make sure your company has solid reasons for drug testing. Don't just climb on the bandwagon because everybody seems to be doing it.
The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal problem, consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site establishes or should be construed as establishing an attorney-client relationship between you and Gregory A. Bonfiglio or the law firm of Morrison and Foerster LLP.