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 19 states plus the District of Columbia. Even in these states, however, such usage 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
The drug use rate of US workers has declined 74 percent over the past 25 years, according to a Quest Diagnostics study. The drug screening company analyzed over 125 million urine drug tests administered from the period 1988 to 2012 to reach its findings.
Certain state courts recognize a variety of claims regarding drug and alcohol testing, including negligent drug testing. New York is the latest state to do so, but the claim has long been identified as a potential liability risk leading to increased costs with respect to employee drug testing.
In-depth review of the spectrum of Florida employment law requirements HR must follow with respect to HR and workplace safety.
The Department of Justice announced it is relaxing its marijuana enforcement policy and will not challenge state laws legalizing marijuana use for either medical or recreational purposes. The trend to legalize the use of marijuana for medical and/or recreational could challenge employers when it comes to implementing workplace policies.
Illinois has become the 20th state to legalize the use of medical marijuana to treat certain recognized chronic conditions and diseases. Gov. Pat Quinn signed the measure into law on August 1. It is scheduled to become effective January 1, 2014.
Several XpertHR resources have been updated in light of an Illinois law signed August 1, 2013, legalizing medical marijuana use for certain serious illnesses and conditions. Illinois is the 20th state to have adopted such a law.
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.
A host of XpertHR resources have been updated to reflect a New Hampshire law signed July 23, 2013, legalizing medical marijuana use under certain circumstances in the state. The law makes New Hampshire the 19th state plus the District of Columbia to adopt such a law.
Legal considerations for HR concerning drug and alcohol testing of job applicants.