A Business-Minded Approach To Employment Law

What You Should Know About Employee Drug-Testing

On Behalf of | Jun 7, 2016 | Drug-Testing |

Whether you have a drug-testing policy in place yet or not, you should firstly know that the National Drug-Free Workplace Alliance claims that small businesses actually bear the greatest burden when it comes to substance users. So if you’re just now establishing these policies as a new business, you’re at a higher risk as a growing business than larger corporations with strict, tried-and-true procedures in place. Why is this? Drug users don’t normally apply to jobs at large companies because they have these company wide drug use policies-instead they might be aiming for employment with a startup/smaller organization with fewer resources (and thus motivation) to perform routine drug checks. As a general rule, they assume they are safer, and proceed with use without worrying about it negatively affecting their position.

If you don’t drug test, your business could most definitely be at risk for negligence lawsuits and more repercussions both personal and professional. For example, if an employee under the influence of some illegal substance is high at work and this leads to energy, your business could be sued. In a court case, it would be pointed out that even though the injury was their fault technically, you are to blame because you didn’t drug test.

If you’re thinking about implementing drug testing (and I hope you are), here are several things you should consider:

Don’t hand-pick who you test. The law doesn’t technically say that an employer must screen for drugs for all employees, but if you don’t you’re also opening yourself up to discrimination charges if they feel singled out and personally victimized/stereotyped.

If you’re receiving federal funding, you’re required to test for drugs. The Federal Drug-Free Workplace Act actually REQUIRES businesses with $100,000 or more in federal funding to test all of their employees. This also applies to federal grants.

There are often state-specific laws. Each state has its own separate set of rules to follow as well when drug-testing. For example, in Virginia, businesses cannot require employees or applicants to pay for testing out of their own pockets. Other states don’t have such policies in place. To learn more about specific laws in your state surrounding testing, see the U.S. Department of Labor’s map.

Sometimes they have to be employed first. If your business currently employs 15 or more people, it has to follow the Americans With Disabilities Act, which in fact makes it illegal for any company to test a job applicant without first making a (conditional) offer of employment. This means it is OK to test people applying to work for you, but only ones that have an offer on the table already, it can’t be an application requirement.

Always test honestly! Don’t try to get a sample without someone’s consent or knowledge of the testing in full. This is unlawful, needless to say.