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Drug/alcohol testing: FAQs

by on
in Centerpiece,Employment Law,Human Resources

When it comes to drug and alcohol testing, employers must balance the desire for a drug-free workplace with employees' privacy rights. So before implementing a drug testing policy, employers must address such issues as whether random drug testing is necessary, and legal; how a post-accident drug/alcohol testing policy must be structured; and whether it's legal to reject an applicant who won't submit to a pre-employment drug test.

FAQs about drug/alcohol testing

1. Who should pay the cost of drug and alcohol tests?

The company should pay the cost of any drug and alcohol tests that it requires or requests employees or applicants to take, including retesting of confirmed positive results. Any additional tests that the employee requests should be paid for by the employee.

2. Is it legal to refuse to hire an applicant who won't submit to a pre-employment drug test?

The controversy over drug testing involves random testing of present employees. Most states permit pre-employment testing of all job candidates and you don't have to hire any individual that fails a drug test. You should have a written policy that provides for the following:

  • the applicant is informed in writing of the testing requirement;
  • the test is reliable and a positive result will be confirmed by a second independent test;
  • the results of the test are confidential and may not be disclosed to any person other than ones to whom disclosure is necessary.
3. What are the legal ramifications of implementing a post-accident drug-testing policy?

Post-accident drug testing can be a good way to reduce substance abuse, lower accident rates, slash workers' compensation costs, increase productivity, and decrease absenteeism rates. The main roadblock: developing the policy in such a way that employees won't view it as an invasion of their privacy.

As with many workplace policies, post-accident substance abuse testing must pass the following legal litmus test: Does the possible harm to the entire workforce supersede the rights of the individual? Here are some tips that may further reduce the likelihood that you'll be slapped with an invasion of privacy claim if and when you enact such a policy:

  • Research other companies' policies. Choose carefully bits and pieces that apply to your company, and find out if they've stood up to legal challenges.
  • Enlist the aid of your workforce. Invite employees to join a policy steering committee. Workers will be less likely to protest a policy that they've had a hand in developing.
  • Post your policy well in advance of the effective date. Keep an open mind to suggestions/revisions brought forth by all personnel. Modify if necessary.
  • Use statistics to support the launch of your policy. Mention what problems you'd like to curb and where you hope the policy will lead your workplace.

Note: Some states also place legal restrictions on drug testing, so be sure to check out your state's law before implementing your policy.

4. Does the Drug-Free Workplace Act require covered employers to conduct drug tests of employees?

No. The law encourages employee education, the establishment of an employee assistance program, and supervisory training on how to deal with employees suspected of drug abuse. It also recommends pre-employment testing of job applicants, and testing of employees based on reasonable suspicion, after accidents, and during and after counseling and/or rehabilitation. It does not, however, mandate testing.

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{ 3 comments… read them below or add one }

Alcohol Testing and Drug Testing Australia May 1, 2012 at 4:12 am

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Thank you for sharing.

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Pre screening And Drug Testing April 25, 2012 at 6:04 am

Well written post. Pre screening Drug testing is now very important part for every type of Industry. And it is available with good technology options, professional support networks and onsite drug testing. So thanks for sharing.

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George Norman January 18, 2012 at 5:41 am

I worked in a machine shop with about 75 employees for six years. They had the “Drug Free Workplace” policy. I knew about the policy, which used random test, but still chose to get high. I was never high at work but on my time, always. I figured my outstanding safety, attendance, and production record far outweighed the results of a drug test, if it ever came to that. I am now unemployed after failing a test that was given to me first thing on a Monday morning. My unemployment was denied, my bills are past due, and I am pissed. My state has passed laws making their own employees safe from random testing, but not the private sector. I guess my privacy isn’t as important as theirs. If my wages do not equal minimum wage X 168 hours, are they not in violation of the Fair Labor Standards Act? No man can have a right to impose an unchosen obligation, an unrewarded duty or an involuntary servitude on another man. Not only is this a violation of my freedom, and privacy, but for all of them years I was not being paid for the time I still had the responsibility of following company policy. I say it’s time for America to focus on producing quality products that we can proudly sell worldwide and get people back to work. Lets quit trying to see how far our privacy and liberty can be limited or stripped away.

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