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Drug testing: Minimize lawsuit risk with smart policy

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in Discrimination and Harassment,Firing,Hiring,Human Resources,Leaders & Managers,Performance Reviews

THE LAW. You have the right to demand a drug-free workplace, but employees also have reasonable rights to privacy. That's why drug testing and substance abuse prevention programs carry big-time legal risks if they're not managed properly. Based on court rulings, employers are typically safe to administer drug testing in three situations:


  • During the pre-employment stage, as long as your state law doesn't ban this practice. (The safest course is to withhold drug tests until after you've made a conditional job offer.)



  • During the fitness-for-duty test of an employee with performance problems.



  • After a preventable accident occurs.




Be aware, however, that about one-third of states have laws regulating employee drug testing. Check your state law before you start any testing program. (To discover your state's law, go to http://said.dol.gov and click on "State and Territory Laws.")

WHAT'S NEW. The legality of random testing continues to be debated. But evidence is growing that courts will challenge testing policies that lack any reasonable cause. Recent example: The Ohio Supreme Court this year struck down a law that required every state worker injured on the job to submit to a drug test, regardless of whether the employer had any reason to believe the injury stemmed from the employee's drug or alcohol use.

That's why you should have a relevant business-related reason for any test. And limit testing to situations involving safety, security, accidents and the retesting of workers who have completed or are in a rehabilitation program.

Another danger: Workers today have more ways to fake the tests and beat them, thanks largely to the proliferation of cheap, effective products sold online, including clean urine. The good news: More states are now criminalizing the tampering of employer tests.

HOW TO COMPLY. Here are some key legal issues you'll need to address:

Disability discrimination. Drug tests aren't considered medical exams under the Americans with Disabilities Act (ADA), so employers can con-duct them at any time during the pre-employment stage. If those tests reveal the presence of legal drugs in an applicant's system, this could tip you off to a person's disability. Advice: Don't consider this positive test for legal drugs as a factor in hiring; that's illegal.

In fact, to avoid liability, wait to test until a conditional job offer is made. Because applicants who test positive for illegal drugs aren't covered under ADA, you can withdraw a job offer based on those results.

State, local and common law concerns. Some states and cities restrict workplace testing, as do some court rulings. As a result, employees have many avenues to sue. For example, an employee fired for refusing a drug test may claim wrongful discharge. And a highly intrusive testing procedure could be grounds for a common-law claim for invasion of privacy.

Teach managers to watch for warning signs. It's OK to train supervisors to recognize the signs of substance abuse, but instruct them on what action to take if they suspect a problem. Managers should be concerned only with behavior that affects job performance or violates company policy. They should document behavior and performance problems, while leaving out any substance-abuse theories.

Resources: Drug testing/drug policies

  1. Free E-visory report, Drugs in the Workplace, published by You & the Law. It offers advice on signs to look for, how to write a policy and a sample drug-testing policy. To access the free report, go to www.you-and-the-law.com/extra.
  2. Drug-Free Workplace, Small Business Kit offers free tools, tips, posters, videos and more to help keep workers drug free. Go to www.dol.gov/asp/programs/drugs/workingpartners/screen1.htm. (Another good government-based site: http://workplace.samhsa.gov.)
  3. State laws on drug testing. Go to http://said.dol.gov and click on "State and Territory Laws."

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