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Should You Test Prospective or Current Employees for Drug Use?
Approximately half of employers engage in drug-testing. As a private employer, you generally may, and sometimes must engage, in testing prospective or current employees for drug use. If you do test, you must comply with several laws. If you are not required to test, you should weigh the considerations. Testing and not testing both have moral, ethical, social, and financial considerations. This article explains your legal and financial obligations and risks and presents the pros and cons
Federal Laws
The U.S. Supreme Court has ruled that drug testing is a minimal invasion of privacy. That invasion can cross the legal line if, for example, an employer insists on observing an employee urinate.
If you receive a federal grant or contract, you must operate a drug-free workplace. The government is unlikely to know if your employees are drug-free, so a program, which may include testing, serves as documentation of your intention.
Drug-testing, and your actions in response to positive tests, must comply with several federal laws. The program must not be discriminatory.
The Americans with Disabilities Act (ADA) applies to employers with at least 15 employees (see our article “Interviewing Job Candidates”). Courts have ruled that alcoholism and drug addiction are disabilities, and therefore job candidates are protected by the ADA. Also, candidates or employees who are legally taking prescription medication for a disability are protected from discrimination by the ADA.
Testing can be subject to other discrimination claims. Your program can be limited to work classifications, such as people who drive or work in a warehouse, but it must be uniformly applied.
State Laws
Each state has its own laws. Some cities also have laws. OHS Health & Safety Services, a private business, provides a summary of individual state laws on its website. This information may not be accurate or up-to-date. You should check your state’s website or consult with an employment lawyer for the best information.
As a generalization, state laws either strongly favor civil liberties or strongly favor a get-tough-on drugs approach. The Institute for a Drug-Free Workplace says Connecticut, Maine, Minnesota, Rhode Island, and Vermont have the most restrictive laws. Hawaii, Iowa, and Montana also have laws that limit employer testing.
California requires that business with state grants or contracts operate a drug-free workplace. Texas requires business with more than 15 employees to have a policy. North Carolina allows testing, but requires that you follow specific procedures.
Some states require that employees in specific occupations are tested. These are typically occupations that primarily involve driving or operating potentially dangerous equipment.
Business Reasons for Testing
The widely reported, but unsubstantiated figure is that substance abuse costs employers $81 billion per year due to absenteeism, decreased productivity, and increased costs for medical and disability benefits. The reduced contributions of a single employee can result in missed deadlines and can harm the morale of a department or everyone working for a small business.
- Worker protection. Intoxicated or addled employees are more likely to engage in behavior that threatens the safety of their co-workers.
- Lawsuit prevention. You can be liable for negligent hiring or retention if an intoxicated or addled employee harms someone while on the job (see Startup Smack’s article “Employer Liability for Employee Actions”).
- Workers’ compensation discounts. Depending on your state, you may have lower premiums if you have a drug-free workplace program.
Business Reasons against Testing
At minimum, you will pay $45-$55 per test. Costs vary widely, depending on your location, how many drugs you include in the test, and the type of test. They can range up to $600. The National Safety Council offers a simple calculator you can use to get an estimate. If you test existing employees, you must pay them for their time away from work.
- Some candidates and employees welcome drug tests because they see it as a competitive advantage or they want to work in a drug-free workplace. Others see you as being big brother. They perceive a lack of trust, which results in an us-versus-them (management) attitude and believe testing is an invasion of privacy.
Lawsuit prevention.
You may be sued by a victim of a false-positive test. Mishandling or misuse of tests or failure to adhere to a consistent program can lead to lawsuits.
- Drug testing does not test for impairment. People can buy urine and usage instructions online.
Arguments for Testing
- Most employees favor expect and favor drug-testing, according to the results of 20 surveys conducted by Gallup on behalf of The Institute for a Drug-Free Workplace. The Institute asserts, “Most workers are not drug abusers, do not want to work side-by-side with drug abusers, and favor strong substance-abuse-prevention policies and enforcement of those policies. Drug abuse in the workplace is not a labor-management problem; it is a common concern of both employees and their employers.”
- The Drug & Alcohol Testing Industry Association (DATIA) cites these reasons for testing: to prevent hiring illegal drug users, to protect the public and consumers of your product or service, to encourage current employees not to abuse alcohol or drugs, and to help employees who have a problem before it escalates into addiction.
Arguments against Testing
- The American Civil Liberties Union (ACLU) maintains that “random drug testing is unfair, often inaccurate, and unproven as a means of stopping drug use.” The ACLU believes that people who aren’t suspected of use shouldn’t be tested. The organization points out that urinalysis reveals the presence of many conditions, including pregnancy. It cites an example of employer abuse of that information. The ACLU favors computer-assisted performance tests over urine tests.
- The National Workrights Institute opposes forcing employees with satisfactory job performance to “prove their innocence through a degrading and uncertain procedure that violates personal privacy. Such tests are unnecessary because they cannot detect impairment and, thus, in no way enhance an employer’s ability to evaluate or predict job performance. In jobs where impairment of performance might directly affect safety and where employees work away from supervision, easy to use tests [that] actually measure impairment are available to employers.”
Drug-Use Policy
Whether or not you choose to implement drug testing, legal and HR experts concur that you need a written policy. It should be included in an employee handbook, if you have one, and it should be mandatory reading. The federal government’s Substance Abuse and Mental Health Services Administration (SAMHSA) offers detailed guidelines. SAMHSA also offers The Drug-Free Workplace Toolkit.
If you test, your policy should describe when and how testing will happen. List the drugs included in the tests. Explain how you will handle positive tests. That could be a second chance, termination, or substance-abuse treatment as a condition of continued employment. An employee assistance program can be part of your policy.
If You Test…
Many employers only test candidates. They most commonly do this after extending a job offer contingent on passing the test. Only a few states restrict your right to do that. Existing employees generally have more legal protections than candidates do.
If you test employees, you must follow the limitations imposed by state and local law. California is one state with rigid restrictions. It only allows testing for cause. Without reasonable suspicion, testing is illegal in many states. You may have reasonable suspicion because:
- an employee behaved abnormally or erratically,
- you overheard or observed a drug transaction or witnessed usage,
- you or an employee’s co-workers observed symptoms of drug use, or
- an employee has no valid explanation for a sharp decline in work performance.
In many states, random testing is allowed for employees whose jobs pose a safety risk. In many states, you may test employees who are in or have completed a drug rehabilitation program and employees who have work-related accidents.
Marijuana
About half the states have legalized medicinal use of marijuana. A handful have legalized recreational use. Legalization is growing trend.
Some states require that employers make reasonable accommodations for workers who use medical marijuana. However, rulings by the supreme courts in California and Colorado have established that while medical marijuana users cannot be prosecuted, they are still subject to their employer’s drug-use policies.
Drug Tests
You can use any of four test methods:
- urine
- breath
- blood
- hair
Sweat and saliva tests are tests are less popular. Urine testing is the most common. Costs vary by test type. Each type is more effective for certain substances. Hair tests can determine usage in the past 90 days