A number of current federal laws may impact the right of private employers to adopt drug and alcohol testing policies for their employees, and some states have enacted protective legislation placing restrictions on drug testing of employees without reasonable suspicion. To operate within the law, you should follow guidelines when setting up drug testing procedures.
Taking the following steps will help you to ensure a safe, healthy and productive work environment — without violating employee rights.
Draft a written policy
Having a written policy in place is the single most important step in setting up your company's drug testing procedures. Work with your legal counsel to develop and implement a policy in accordance with applicable state laws. This will allow you to notify potential hires early in the application process and obtain their consent before testing.
Conduct pre-employment testing
Pre-employment testing is considered the most legally valid form of drug testing and should be conducted on all applicants as part of the screening process. However, the test should be requested and administered only after a conditional offer of employment has been made. According to the Americans With Disabilities Act, it is illegal for any employer to test a job applicant without first making a contingent offer.
Test one, test all
To avoid claims of discrimination, all applicants who have been extended an offer of employment should be subject to testing. If you test only the applicants deemed suspicious, it may be construed as singling out people based on race, gender, or other protected status.
Understand your drug testing options
In general, there are two types of legally accepted drug testing methods.
- Random drug testing is conducted unannounced on all current employees or a class of employees (e.g., employees who drive for company business) and provides the best deterrent against drug use because nobody knows when he or she will be tested. The downside of random testing is that it can create feelings of fear and mistrust within the workplace.
- Reasonable-suspicion testing is conducted when an employee exhibits behavior that leads you to suspect illicit drug use or possibly after an accident occurs. Having a written policy which clearly defines what constitutes suspicious behavior or accidents can help avoid claims of discrimination. Reasonable-suspicion testing also helps you avoid creating a "Big Brother" atmosphere in the workplace and reduces costs by only testing those employees deemed suspicious.
Comply with your state law(s)
As previously mentioned, many states have enacted restrictions on drug testing in the workplace. We have provided a great link below from Sciteck.org that breaks down the laws, state-by-state.
Click here for an up-to-date breakdown of each state's drug testing laws.
Drug test results, like all medical information about your employees, should be kept confidential. To help maintain confidentiality, collect samples in a private and unobtrusive manner and discuss positive test results and consequences with the employee in private.
Consider a last chance agreement (LCA)
In lieu of terminating an employee who tests positive for illegal substances, consider providing that employee a final opportunity to comply with your company's policies by including a Last Chance Agreement in your written policy. These agreements have been gaining support both in the business world and in the courts, as they provide employees with a viable way to remain employed after committing an infraction, while also preserving the employer's right to terminate should that employee violate the terms.
While Federal law is permissive about employers' rights to administer drug tests in the workplace, state laws vary and should be verified by your legal counsel. It is important to have a written policy in place, so that applicants are made aware that they will be tested. Remember, you can test an applicant only after a contingent offer is made.
Employers must make a careful choice between random testing and reasonable-suspicion testing. No matter which option you choose, always respect the confidentiality of all medical information. In general, it's best to err on the side of caution, and allow your employees the opportunity for treatment and rehabilitation, as this is looked upon favorably by the courts and builds employee trust.
For more information about drug testing, contact Cindy McSwain using her information below.
Senior Vice President
Cindy McSwain leads AGH’s outsourcing services group. Her team provides payroll, accounting, funds disbursement, controller, and other financial outsourcing services to numerous clients throughout the U.S. Prior to joining the outsourcing group, Cindy served AGH’s audit clients for 10 years, working with a wide range of middle-market, closely held and family-owned organizations.
Her current clients cross many industry sectors, including manufacturing and distribution, restaurants, retailers, medical and not-for-profit. She has participated in numerous SEC filings and public registrations and has experience in mergers and acquisitions. Cindy is a certified public accountant and a member of both the American Institute of Certified Public Accountants and the Kansas Society of Certified Public Accountants.
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