There are Legal Considerations When Drug Testing Employees
Drug testing employees can help ensure that a business is a safe and productive environment, and will help businesses to avoid claims of negligent hiring. Small businesses especially bear the burden of needing to drug test. According to The National Drug-Free Workplace Alliance, drug users generally won’t apply at large corporations that they know require drug screenings. If your business is considering adopting a drug-free workplace policy, the following are some legal considerations to keep in mind.
Create a clear drug-free workplace policy for your company.
Describe what will be considered a drug violation, and the actions that will take place if a violation occurs. Will the employee be instantly fired? Will they be given a chance for rehabilitation and then be on probation with monthly drug testing?
You will want to include which employees will be required to test for drugs. Will it only be applicable to certain jobs that require driving, operating machinery, etc? State that employees can be selected randomly for a drug screening at any point in time as determined by the company. Also add a “for-cause clause” to give the company the right to drug screen an individual based on evidence of drug use.
To find out how to write a drug-free policy statement, click here for the United States Department of Labor website. Require every employee to sign a drug-free policy. Having a clear policy that every employee must acknowledge will help to protect your business.
If you test one employee you should probably test all. Although it isn’t required by law, you should drug test all employees. This is a way to avoid a lawsuit from an employee that claims they were selected unfairly or were discriminated against based on sex, gender, race, etc. Although random selection is allowed, it is just one way you can protect your business from lawsuits.
Also, if your business chooses to do random testing of employees over a period of time, make sure each employee tests the same number of times if possible. For example each employee tests once a year and every employee is randomly assigned a day, making sure that none of the employees get an extra testing day so they don’t feel “picked on.”
Keep results confidential. If someone should “fail” a drug screening, no one but the necessary recipient at your place of business should know about it. There can be all sorts of legal recourse to deal with, such as suing for defamation etc. Upon drug testing you will want the employee to sign a consent form to release the results to the company. A sample of this form can be found here on the Society for Human Resource Management website.
You cannot test applicants unless they have been offered the job. It might seem like a good way to narrow down your candidates, but it is prohibited. You can test an employee as soon as you have made a job offer. It can be part of the regular hiring process, but you cannot test someone before they are offered a job at your company. In the state of Virginia, you cannot require the employees to pay for their own test, and so testing will be an expense for your business.
Don’t be sneaky about testing someone who is suspected of doing drugs. You can’t pull a hair off of someone’s head and send it to the lab for drug testing. You need to be forthcoming with all drug testing procedures.
All of these measures in regards to drug testing can be taken to protect your company in case of lawsuit or unemployment case. It may seem like a lot of provisions and legalities to deal with; however in the long run, having a drug-free workplace policy will safeguard your business. It will allow your business to be a safe and productive work environment.
This information is strictly for guidance and is not meant to be legal advice. Always consult a licensed attorney for legal advice.
Sources: http://www.nfib.com/business-resources/business-resources-item?cmsid=54845 and http://www.twc.state.tx.us/news/efte/drug_testing_in_the_workplace.html
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