Drug Testing of Prospective Employees

Although business owners have the legal right to insist on a drug-free workplace, they also have to know their workers' legal rights to privacy and nondiscrimination in order to set legal enforcements.

All employers want a drug-free workplace. Workers impaired by illegal drugs can threaten the safety and productivity of a business and could even cause legal problems.

Although business owners have the legal right to insist on a drug-free workplace, enforcing that right can be a contentious issue. Any steps you take to maintain a drug-free workplace must respect workers' legal rights to privacy and nondiscrimination.

Many employers, especially small business owners, rely on interviews and background checks to identify drug users. Many drug users are adept at hiding their drug habits, however, and they easily sail through interviews and background checks. That's why some firms choose to test workers' urine samples or hair follicles. But before you implement such a policy, make sure you understand how the law governs drug testing.

Federal Law
Drug testing falls under the Americans with Disabilities Act (ADA), which includes several key features:

• The ADA makes it illegal for any employer to test a prospective employee without first making a conditional offer of employment.

• The ADA also says you can't discriminate against prospective employees on the basis of past drug-related problems. Then again, you may refuse to hire people if you have reason to believe they will return to substance abuse or endanger the safety and health of your workers. If you aren't sure how to proceed with an applicant who has a history of drug abuse, consult an attorney. The ADA doesn't prohibit asking a person with a history of substance abuse to enroll in a rehabilitation program before joining your firm.

State Laws
Laws vary from state to state and change frequently. You can find out the details of your state's drug testing laws by contacting a trade organization, your state government or an employment lawyer. Your right to test workers for drug use depends on several factors:

• The job itself. If a job has the potential to place the employee, coworkers or the public in danger, there may be stronger legal justification to test for drugs.

• Evidence of a drug problem. Some states require you to show probable cause to suspect employees are impaired before testing them for drugs.

• Whether the worker is already on staff. Once applicants are hired, your rights to test them for drug use may diminish. Some states require visible evidence of substance abuse such as an accident, a visible decline in work quality or the discovery of illicit drugs in the workplace before you have the legal right to test a current employee. Testing current employees at random or without prior notice is also illegal in many states.

In addition to drug testing, another important legal matter in hiring and management is background checks. You can increase your changes of identifying problems before you sign someone on and create an important documentation process to smooth out personnel problems later on. Read Why Should You Do a Background Check? for some guidelines on implementing this process.

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