Overview: As a matter of law, preemployment drug testing generally is permitted. As a result, some employers test job applicants for substance abuse because such use may impair job performance, increase absenteeism and create safety hazards.
Employers must administer their drug testing programs in a uniform manner to avoid the risk of a discrimination lawsuit. They also must confirm the accuracy of any drug tests, including having chain-of-custody procedures and tampering safeguards in place. In addition, any applicable state drug testing laws must be followed.
There is a key distinction between drug tests and alcohol tests under the Americans with Disabilities Act (ADA). The ADA does not consider drug tests to be medical examinations so they may be administered even before a conditional job offer is made. In contrast, alcohol testing should only take place after an employment offer has been extended that is conditioned on passing a medical exam, and if it is job-related.
In unionized workplaces, the National Labor Relations Board (NLRB) has decided employers need not bargain with labor unions before drug testing job applicants because there is no economic relationship between the employer and an applicant.
Trends: The use of medical marijuana has been legalized in 23 states plus the District of Columbia. Even in these states, however, such usage generally is not a justification for a failed drug test. And, employees are still prohibited from using marijuana for medicinal purposes in the workplace.
Author: David B. Weisenfeld, JD, Legal Editor
Louisiana Governor Bobby Jindal signed amendments into law that create a framework for conducting drug testing of an employee's hair.
The Colorado Supreme Court has ruled 6-0 that a medical marijuana user who was fired after failing a drug test cannot get his job back even though both recreational and medical marijuana use are legal in the state. Denver employment attorney Emily Hobbs-Wright said of the ruling, "It's a very important day for Colorado employers."
The new law is projected to take effect July 11, 2015, after temporary legislation that contains the same prohibitions expires.
In-depth review of the spectrum of District of Columbia employment law requirements HR must follow with respect to preemployment screening and testing.
In-depth review of the spectrum of Indiana employment law requirements HR must follow with respect to preemployment screening and testing.
Employers should be aware of state laws regarding marijuana for medicinal purposes. This Quick Reference chart lists the states with medical marijuana laws and the years those laws were passed.
In-depth review of the spectrum of Georgia employment law requirements HR must follow with respect to preemployment screening and testing.
In-depth review of the spectrum of Vermont employment law requirements HR must follow with respect to preemployment screening and testing.
Georgia has become the 24th state to legalize medical marijuana in small amounts. On April 16, Governor Nathan Deal signed legislation that immediately permits the use of the drug to treat eight serious health conditions. However, the new law does not protect medical marijuana users from employment discrimination.
Legal considerations for HR concerning drug and alcohol testing of job applicants.