Why Testing for Drugs Can Be a Slippery Slope

Most private employers are not required to test job applicants or employees for drug or alcohol use. The exception would be if your business is the transportation or other safety-related industry that may be regulated by federal agencies, such as the Federal Aviation Administration or the Federal Highway Administration, or the trucking or mass transit industries.

Legal Limitations on Drug Testing

Drug testing is intrusive and definitely can impact privacy rights and discrimination protection. So state and federal laws place limits on testing. Generally, current employees have more rights with respect to drug testing than job applicants. Courts have ruled that employees stand to lose a job due to a positive drug test while an applicant may only lose the opportunity for a job.
Should you drug test your job candidates? You can’t force an applicant to submit to drug testing. However, you may be able to make it a condition of employment, in which case, an applicant who refuses effectively takes him- or herself out of the running for the position.
If you decide to slide down the testing slope, pay attention to these limitations:
  • Disability discrimination. The Americans with Disabilities Act (ADA) protects the rights of those who are taking legitimately prescribed drugs, including some opiates, for certain medical conditions.
  • Inconsistent testing across different groups. If an employer singles out certain applicants for testing by, for instance, race or gender, they could face a discrimination claim. So either, test everyone for a given position, or no one.
  • Privacy invasions. Testing means the person must surrender bodily fluids, sometimes under close supervision. Requiring someone to provide a urine sample or disrobe in someone else’s presence may be a violation of privacy. Always use your best judgment by putting yourself in the test taker’s position before proceeding.
  • Medical marijuana. More than half of the states in the U.S. have either legalized marijuana for medical use or have pending legislation to legalize it. The problem is, marijuana is still illegal under federal law. So your ability to deny employment based on a positive test even if the applicant has a valid medical prescription is vague at best. It would likely come down to your personal opinion of the person’s suitability for the job in light of all considerations.

Game Plan

  • Drug testing is a bit of a grey area for employers. When problems have arisen, courts have generally ruled on a case-by-case basis. Often, deciding if a particular test is reasonable comes down to applying common sense and knowledge of anti-discrimination laws and privacy rules as they apply to the hiring process. In all cases, you must have a sound, work-related reason to require employee or applicant testing. If it’s not required by law, only you can determine if drug testing is worth the potential pitfalls.
  • For more on the legality of testing employees for drugs, as well as requiring medical exams, psychological screenings, and lie detector tests, see this page.
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