Tips About Drug Testing During the Hiring Process

Aug 3, 2016

Every employer knows about the potential liabilities attached to hiring someone who is prone to drug or alcohol use while at work.

It has been reported that 10 percent to 25 percent of the American population is “sometimes on the job under the influence of alcohol or some illicit drug.” The social and economic costs of substance abuse in America are staggering. In a report by the National Institute on Alcohol Abuse and Alcoholism and the National Institute on Drug Abuse, it is estimated that the cost of alcohol and drug abuse is around $300 billion, of which 60% was for alcohol abuse and around 40% was for drug abuse.(1)

In response to a client’s question on the subject, I have assembled hereunder some data which provide information on when, and whether, a drug test may be used in the pre-employment stage.

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.

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 choose (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.

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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.

Other legal considerations

  • If you plan on conducting drug testing you should first 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.
  • You should also establish what type of drugs will be tested for. For example, you may may only wish to test for cocaine, or may also wish to test for opiates, amphetamines, and the other drugs for which testing are available.
  • You should 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 be rejected. 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.

For a complete guide to drug testing in the workplace, visit this HRM.org link.

To your success,

Patrick Valtin
Best-Selling Author of “No-Fail Hiring 2.0

  • http://www.usccr.gov/pubs/ada/ch4.htm

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