HR Support on Workplace Drug Testing & Alcohol Testing

Editor's Note: Employers have more leeway to drug test job applicants than employees, but beware of state laws.

David B. WeisenfeldOverview: 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

Latest items in Drug and Alcohol Testing

  • Maryland Marijuana Laws: Employment Law Manual, Quick Reference Chart Updated

    Date:
    21 April 2014
    Type:
    Editor's Choice

    Maryland has become the 21st state to pass a law legalizing medical marijuana with a measure signed by Governor Martin O'Malley that becomes effective on June 1. Several Maryland sections of the Employment Law Manual have been updated to reflect this development along with the Medical Marijuana Quick Reference Chart.

  • Maryland Legalizes Medical Marijuana, Other States Studying Issue

    Date:
    21 April 2014
    Type:
    News

    Maryland has become the 21st state to legalize medical marijuana with a bill signed by Gov. Martin O'Malley. Effective June 1, the new law allows individuals with certain qualifying illnesses or conditions to use marijuana for medicinal purposes if their doctor recommends it.

  • Medical Marijuana States - Chart

    Type:
    Quick Reference

    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.

  • Florida Supreme Court Places Medical Marijuana Initiative on Ballot

    Date:
    11 February 2014
    Type:
    News

    The Florida Supreme Court has held that the state's voters should be allowed to decide in November whether to amend the state's constitution to legalize medical marijuana. The measure must receive at least 60 percent of the vote in order to pass. If it does, Florida would become the first southern state to legalize medical marijuana use.

  • Preemployment Screening and Testing: Oklahoma

    Type:
    Employment Law Manual

    In-depth review of the spectrum of Oklahoma employment law requirements HR must follow with respect to preemployment screening and testing

  • Medical Marijuana

    Date:
    04 February 2014
    Type:
    Editor's Choice

    An increasing number of states are legalizing medical marijuana. Two have gone a step further to legalize the drug's recreational use. This list of resources will help employers find out what state legalization laws mean for drug testing policies and related issues.

  • Quest Diagnostics Study Reveals Workplace Drug Use Declined Over Past 25 Years

    Date:
    20 November 2013
    Type:
    News

    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.

  • Case Law Regarding Negligent Drug Testing Added

    Date:
    19 November 2013
    Type:
    Editor's Choice

    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.

  • When is an employer in the transportation industry permitted to conduct employee drug and alcohol tests?

    Type:
    FAQs

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    Type:
    Employment Law Manual

    In-depth review of the spectrum of Florida employment law requirements HR must follow with respect to HR and workplace safety.