There are no laws that require you to keep drug-abusing employees on your payroll. However, numerous restrictions, primarily state laws, dictate what you can and can’t do. As with other sensitive personnel issues, it’s important to develop a policy, communicate it clearly and enforce it consistently.
The Americans with Disabilities Act (ADA) bans discrimination against employees who have a history of drug or alcohol abuse but are sober and in rehabilitation programs. In addition, the Occupational Health and Safety Administration frowns on post-incident mandatory drug tests. An example would be to require a drug test after an accident has occurred. This could be perceived as retaliatory in nature and potentially discourage workers who’ve been hurt while at work from reporting the injury.
“The appearance of discrimination against protected groups could land you in legal hot water, even if there was no intention to discriminate. This is true of drug tests administered to current employees, and also as part of pre-employment testing,” said Alfred Roush, Esq. SPHR, SHRM – SCP, VP of HR Services at CertiPay.
Testing Before and After Hiring
The front-end of the drug testing policy is pre-employment screening. Although the practice is permitted, state laws sometimes dictate how you need to inform job applicants about your policy, such as in job postings, and where the tests can be administered.
For practical reasons, most employers limit the requirement to those with job offers. However, if you withdraw a job offer based on the results of the drug test, the individual has the right to contest the results of the test (though few do). If the individual prevails, you could face a wrongful denial of employment legal claim.
Variations by State
If you’re developing a drug testing policy, keep in mind you must seek state approval of your policy before implementing it. The state dictates points such as which drugs are “testable” and what thresholds translate into a positive result. Also, employees must be consulted in the development of a drug-testing policy.
Regardless of the circumstances under which employees are drug-tested, it’s essential to be careful about jumping to conclusions based on test results. For example, a test that detects the presence of an opiate cannot distinguish between street heroin and opiate-based legally prescribed pain medications. The trend toward legalization of “medical marijuana” in various states also adds complexity to the equation. In New York, for example, people who become registered (and card-carrying) medical marijuana users, are entitled to accommodations based on the disability that the marijuana is intended to mitigate. However, an employer could establish a policy requiring such employees to inform them about usage. This is not only to avoid triggering a false alarm on a test but also to ensure that the employee’s marijuana use isn’t incompatible with his or her job duties, particularly with regard to injury hazards. Confidentiality of drug test results must be scrupulously guarded.
Exercise Discretion?
Perhaps the toughest part of maintaining a drug-testing policy is dealing with the consequences when an employee fails a test. If you have a true zero-tolerance policy, you have little choice but to terminate the employee. However, depending on your industry, safety concerns and labor market, you might want to give yourself some options. If you do provide for some leeway, it’s important in the policy statement to warn employees that you can terminate them at your discretion after the first failure. You don’t want to convey the message that they can get a free pass. When discretion is exercised, it’s crucial to do so consistently if other drug test failures crop up. Also, it’s always prudent to have a qualified attorney carefully review new employment policies before you put them into place — particularly those involving heavily regulated practices. Contact CertiPay HR with questions or guidance on issues regarding drug testing policies.
