Drug Testing

Drug testing has become more of a hot issue as drug abuse becomes a more widespread problem in the United States. Many businesses realize that drug-abusing employees cost them money, and they want to reduce those costs. There are other reasons to test for drug use as well:

• It is a screening device. One of the best ways to protect your business is to aggressively screen out alcohol or drug abusers before they become employees. Drug tests can help pinpoint those who are dependent on alcohol and drugs.
• It is a defensive tool. Giving applicants a drug test protects your company from negligent hiring claims arising from violence or safety violations. It is also true that drug abusers tend to avoid firms that test.
• It may be a legal requirement. For certain safety-sensitive positions and occupations, drug and alcohol testing of applicants is mandated by federal or state law.

Railroad and other public transportation employees must be tested for drug and alcohol use periodically.

Do you have to test all job applicants? You can be selective so long as you don't discriminate against protected groups. Otherwise, the answer varies depending on state law.

State laws. In more than half of the states, state laws provide guidelines for when you may test applicants and employees and the procedures that must be followed. If you choose to have a drug and alcohol testing program, it must comply with those procedures, safeguards, and limitations.

Where they have been enacted, state laws generally apply to all applicants and employees. They may, however, allow testing of applicants only where the nature of the job is high-risk or safety-sensitive or if testing is required by federal or state law.

Some states explicitly require that you may only test applicants that have been offered a position conditioned on a negative drug and alcohol test. Other states encourage testing by providing lower worker's compensation rates to employers who establish a testing program in conformance with specific requirements.

Click on your state on the map below to see whether your state has a law on the subject and, if so, the limitations that apply.

Do you have to give applicants notice of drug testing? Many drug and alcohol testing laws require that job applicants be notified in advance that they may be tested, and under what conditions. Generally, the fact that your company conducts drug and alcohol testing should be spelled out in the job application.

In addition, written notice of the need for testing must be given before the job applicant may be tested. One way to fulfill requirements and protect yourself is to follow these steps, (but check applicable state laws on notice):

• Give the applicant written notice that drug testing is required before hiring, by means of either the employment application itself or a form given out at the first interview. The notice should list over-the-counter medications that may produce a positive test result.
• Invite the applicant back for a second interview.
• Hand the applicant a conditional job offer letter that indicates that the position is conditional upon completion of drug test.
• Announce that the drug test will take place immediately. This procedure will "catch" any applicant who would otherwise have scheduled the drug test at his or her convenience and would have allotted sufficient time for any drug residue to have dispersed from his or her system.
• Give the applicant an information form detailing the time and place of the appointment.
• Deny employment if there is a positive test result.

If you have 15 or more employees. As an employer of 15 or more, you're subject to the Americans with Disabilities Act (ADA), the federal law that protects people with disabilities from discrimination. If this is a consideration for you, you should test job applicants only after they have been given a conditional job offer. Why? Because, generally, as part of the test, the examinee is asked about prescription drugs or other reasons that could account for a false positive reading.

If you ask about prescription drugs before a preliminary job offer was made, it might appear that you are trying to screen out people who have a disability.

Included among the Business Tools is a sample drug testing release form that you can use.