Q. One of our employees was recently in jail for traffic and drug violations. Before he returns to work, what guidelines can we follow to ensure that he's drug-free? Will we be discriminating if we require a drug test before allowing him back on-site, even though we didn't require this test when he was hired? —M.Z., Washington
A. To answer this question, we're going to assume the employee isn't covered under an employment contract or collective-bargaining agreement. We'll also assume you're not a public employer. The answer is that you can legally require return-to-work drug testing even if you don't regularly perform pre-employment tests. Nothing in the ADA would prohibit return-to-work testing under these circumstances.
One more tip: Include a provision in your company's drug and alcohol policy that specifically authorizes return-to-work drug testing in such circumstances. If you don't have a drug and alcohol policy, draft one.
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