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Screening New-hires for Substance Abuse

Testing prospective employees for drugs is a necessary evil in many industries and professions. This practice could head off negligent hiring claims arising from workplace violence, injuries caused by safety violations and claims by an employee terminated for using illegal substances at work. However, if you are not careful, a drug testing policy might result in legal problems for your company.

Background: Under the Americans with Disabilities Act (ADA), drug users have the right to sue their employers for wrongful termination. Individuals who are fired based on their prior abuse of alcohol, prescription drugs and illegal drugs are protected by the ADA. Furthermore, a person who currently abuses prescription drugs or alcohol, but still performs the essential functions of his or her job, is protected from termination solely for drug use. Also, employers should review all the applicable state laws in this area.

Since the ADA has made it more difficult to terminate a drug user who is already employed, more companies are turning to pre-employment drug testing. Here are some of the most important legal aspects to consider.

* Your company may be open to a discrimination claim if screening takes place before a conditional job offer has been given to an applicant. Also, set up a standard procedure for testing every prospective employee who would be employed in a similar position.

* Once the screening procedure has been established, it must be followed faithfully. Do not pick and choose the positions required for drug testing. Use it for all or none.

* Before you establish a drug testing program for prospective employees, obtain legal guidance regarding the proper procedures for testing and evaluation.

* When making a job offer to a prospective employee, state in writing that the offer is conditional on passing a drug test. If other criteria are required (e.g., a favorable driving record), be specific.

* After a conditional offer is made, inform the applicant that a drug test will be performed. If he or she refuses to comply, you can legally deny that person employment. (Of course, a positive test would produce the same result.)

* To ensure accuracy and to limit the employer's liability, perform testing at a laboratory certified by a state licensing authority.

Potential pitfall: Even if a test is positive, you may have to hire that person if he or she successfully completes a rehabilitation course. To prevent this from occurring, you can develop a written policy prohibiting anyone who has been rejected for employment, for any reason, from reapplying for at least six months.

Make sure you implement drug testing procedures during the hiring process. Be aware that an employee generally has more rights than a mere job candidate.

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	[ return to list ] Screening New-hires for Substance Abuse Testing prospective employees for drugs is a necessary evil in many industries and professions. This practice could head off negligent hiring claims arising from workplace violence, injuries caused by safety violations and claims by an employee terminated for using illegal substances at work. However, if you are not careful, a drug testing policy might result in legal problems for your company. Background: Under the Americans with Disabilities Act (ADA), drug users have the right to sue their employers for wrongful termination. Individuals who are fired based on their prior abuse of alcohol, prescription drugs and illegal drugs are protected by the ADA. Furthermore, a person who currently abuses prescription drugs or alcohol, but still performs the essential functions of his or her job, is protected from termination solely for drug use. Also, employers should review all the applicable state laws in this area. Since the ADA has made it more difficult to terminate a drug user who is already employed, more companies are turning to pre-employment drug testing. Here are some of the most important legal aspects to consider. * Your company may be open to a discrimination claim if screening takes place before a conditional job offer has been given to an applicant. Also, set up a standard procedure for testing every prospective employee who would be employed in a similar position. * Once the screening procedure has been established, it must be followed faithfully. Do not pick and choose the positions required for drug testing. Use it for all or none. * Before you establish a drug testing program for prospective employees, obtain legal guidance regarding the proper procedures for testing and evaluation. * When making a job offer to a prospective employee, state in writing that the offer is conditional on passing a drug test. If other criteria are required (e.g., a favorable driving record), be specific. * After a conditional offer is made, inform the applicant that a drug test will be performed. If he or she refuses to comply, you can legally deny that person employment. (Of course, a positive test would produce the same result.) * To ensure accuracy and to limit the employer's liability, perform testing at a laboratory certified by a state licensing authority. Potential pitfall: Even if a test is positive, you may have to hire that person if he or she successfully completes a rehabilitation course. To prevent this from occurring, you can develop a written policy prohibiting anyone who has been rejected for employment, for any reason, from reapplying for at least six months. Make sure you implement drug testing procedures during the hiring process. Be aware that an employee generally has more rights than a mere job candidate. return to list ]
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