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How to draft a legal drug testing policy

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in Hiring,Human Resources

Q. I recently read a report that said drug use among employees actually went up in the past decade. We’re considering starting to do drug tests. What should our policy say? —L.U.

A. Many states have laws that regulate drug testing in the workplace, but Ohio does not. Therefore, in Ohio, the most likely employee challenge to workplace drug testing is an invasion-of-privacy tort. That claim, however, is very narrow when applied to private employers and requires a showing of outrageous conduct on behalf of the employer. As such, it is largely inapplicable to drug-testing policies by private employers.

However, you should consider many best practices before implementing a drug-testing policy. First, draft a written policy that gives employees adequate notice before implementing the testing. The policy should also address: 

  • Circumstances for testing, including pre-employment, post-accident, reasonable suspicion, follow-up to a positive test and random tests.
  • The drugs that will be screened for.
  • The testing method that will be used.
  • The consequence of a positive test result or refusing to take a test.

Consult your attorney before launching a drug-testing policy to ensure that the policy is legal and meets the company’s objectives. 

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