No employer likes to hire someone who may be prone to using drugs or alcohol while at work. As a result, many private and some public employers now attempt to test prospective employees for drug and alcohol use. The United States Supreme Court has held that both blood and urine collection are minimally intrusive procedures which are not harmful to job applicants and employees when they are conducted in the context of an employment environment without direct observation by the tester.

The major federal law governing the use of drugs and alcohol in the workplace is the Drug-Free Workplace Act of 1988. This Act basically states that any employer who receives federal grants or contracts must be drug-free, or it risks losing the federal funding. The Act does not, however, contain any provisions that specifically allow for workplace drug testing.

The National Institute of Drug Abuse claims nearly 75 percent of all adult illicit drug users are employed, as are most binge and heavy alcohol users.1 Studies show that when compared with non–substance abusers, substance-abusing employees are more likely to

  • change jobs frequently
  • be late to or absent from work
  • be less productive employees
  • be involved in a workplace accident
  • file a workers’ compensation claim.

Whether employees can be tested for drugs in the workplace will depend on a variety of factors. The following are examples of factors that may be taken into account but should not be taken as a detailed guide, as each case will be different.

  • The industry in which they work and the type of work they do
  • Whether there is a potential health and safety risk
  • Privacy considerations
  • The effect on basic individual rights
  • The details of the proposed testing policy
  • The provisions of the employment agreement

What should employers do?

Employers who plan on conducting drug testing should, before the first test is ordered, establish a written policy governing when the testing will take place and how it will be performed. Having this information in place may help resolve any questions that arise in the future as to whether a particular test should be conducted, or whether it was conducted properly. Employers should also develop a written policy concerning what will happen to an applicant who tests positive for drug use. This type of planning can alleviate future issues concerning how applicants with positive results are handled. For many employers, positive results may mean that those applicants will automatically not be hired. Other employers may wish to give applicants a second chance or may, if such applicants are hired, ask that they participate in employer-sponsored drug or alcohol counseling as a condition of their employment.

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Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Any issues regarding compliance and obligations under United States or International laws or regulations should be addressed through your legal department or outside counsel.