Drug and Alcohol Testing

Author: David B. Weisenfeld, XpertHR Legal Editor

A majority of states have legalized medical marijuana, and a growing number now permit recreational marijuana use as well. So what do these legalization laws mean for employers that wish to conduct drug tests of job applicants and/or their employees?

Maintaining a drug-free workplace remains an important priority, as drug usage can create safety concerns and impaired performance. However, complying with these state laws also is critical. The good news for employers is that these state measures generally do not restrict them from maintaining a drug-free workplace.

Here are some key steps an employer can take to implement a legally compliant drug and alcohol testing program.

1. Know When to Test

Under the Americans with Disabilities Act (ADA), an employer may not conduct a medical exam or make medical inquiries until after an employer extends a conditional job offer and only if the tests are job-related and consistent with business necessity.

While drug testing does not constitute a medical exam under the ADA, alcohol testing is considered a medical inquiry. Thus, alcohol testing should not be conducted until after an employer extends a conditional job offer to a prospective employee. Meanwhile, drug tests should be job-related and consistent with an employer's business needs.

2. Implement a Consistent Policy

An employer should test applicants and/or employees in line with a company drug and alcohol testing policy. This policy must be applied in a uniform, consistent manner to avoid the risk of a discrimination or unfair termination claim. It also should state clearly what conduct it bars to avoid confusion.

As part of the policy, it is also important to ensure that all employees have signed an acknowledgment. The acknowledgment should signify that an applicant or employee has received and reviewed a copy of the policy and consents to its terms.

3. Comply With State Laws

Even in states where marijuana use is legal, employers generally are free to maintain a zero-tolerance policy for drug use in the workplace or for use that might affect an employee while at work. However, some states do prohibit employers from terminating employees for engaging in any lawful activity off the employer's premises during nonworking hours.

There also may be additional state requirements, including regulations pertaining to hair or blood testing. As a result, employers should be sure that their policy complies with applicable laws and regulations.

4. Decide Whether to Test for Marijuana

An employer can decide whether to do a standard five-panel test for "street drugs," such as marijuana, cocaine and PCP, or to also test for prescription drugs and/or alcohol. It generally remains permissible to test applicants for marijuana use even in states where recreational and/or medical marijuana use is legal and to deny employment for a failed test.

However, a growing number of employers in recreational marijuana states (Colorado being a prime example) are opting not to test for marijuana use unless a safety-sensitive position is involved.

Meanwhile, a recent first-of-its-kind Rhode Island ruling may give employers pause. A state court found a company liable for refusing to hire a medical marijuana cardholder because she could not pass a preemployment drug test.

5. Give Opportunity to Disclose

An employer should be cautious in dealing with employees taking prescription medication consistent with doctor's orders. The testing procedure should provide a vehicle for job applicants or employees to disclose current prescribed medications to avoid these concerns.

6. Confirm Accuracy

It is crucial that employers do their due diligence to confirm the accuracy of any testing program. This includes verifying a lab's chain-of-custody procedures and ensuring that proper tampering safeguards are in place.