What You Need to Know About Pre-Employment Prescription Drug Testing 11 Jun 2017

Definition of Pre-Employment Prescription Drug Testing: Pre-Employment Prescription Drug Testing is an action which employers take in order to determine if employees are using drugs. It can identify evidence of recent use of prescription drugs, alcohol or illicit drugs. Pre-Employment Prescription Drug Testing has the best effect when implemented based on a written policy that is clear and shared with all employees. This should be done along with necessary employee education about the dangers of alcohol and drug abuse, supervisor training on the signs as well as symptoms of alcohol and drug abuse.

Do you require applicants to submit to pre-employment drug screening? What about current employees? Screening for illegal drugs is one thing, but what happens when the testing shows positive results for prescription drugs? What do you do with those results? The use and abuse of prescription drugs seem to be increasing. Normally, side effects can have a significant impact on safety and other job-related issues. It seems reasonable then, that you might want to test your employees for substance abuse. As you can guess, there are laws that tell you when and how you can test – and for what. The growing trend among states of allowing prescriptions for medical marijuana adds yet another wrinkle. So what’s an employer to do? Let’s discuss.

What can you do, and when and how can you do it?

In general, you can test applicants and employees for drugs. The U.S. Supreme Court has ruled that while drug testing does infringe on a person’s privacy (which is a constitutional right) there is often an overriding interest in protecting the health and safety of others. Even the President can be subject to drug testing. Let’s break it down further by stages of employment and specific situations, particularly testing for prescription drugs.

Pre-Employment Prescription Drug Testing

In most cases, you can test applicants for drugs after extending a conditional job offer. You can do that even if you have no suspicion that they are using drugs. If you choose to do so, you cannot single out one particular employee or group of employees and not others. You are allowed to do that only if candidates are applying for safety-sensitive jobs. Arguably someone with certain medical conditions may not be qualified to perform certain jobs. That’s a fairly narrow exception, however. Therefore, the best practice is to require the drug screening after extending a conditional job offer.

Why after offering the job and not before? Under the Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendments Act (ADAAA) you may not conduct pre-employment prescription drug testing because it is illegal to discriminate against a candidate based on his/her disability. If your drug test can show whether someone is using legally prescribed medicines for a condition protected under the ADA and you reject the applicant, you might be in trouble. In that case, you may have difficulties proving that you did not base your decision on the candidate’s disability. Tests that are solely for and will only show the presence of illegal substances (e.g. marijuana, heroin, cocaine) are not medical tests under the ADA. Therefore, they can be done before the job offer, without running afoul of the ADA. Again though, better, safer practice is to extend the job offer and then test.

Keeping Up With Laws

In addition to these considerations, you must also check the laws of the state(s) in which you employ people. Different states have different requirements. Some states may specifically require you to extend the job offer first. Other states may require that you inform candidates in writing prior to conducting drug tests of any kind. Frankly, it is in your interest to have candidates sign a consent form beforehand. This should be a common practice even if there is no state law requiring it.

OK, one more general point on pre-employment prescription drug testing: Most drug testing is done by collecting a urine sample. You cannot –and should not—require the candidate/employee to urinate in the presence of another person. Many courts have ruled that such a requirement is an unfair invasion of privacy. What if you are worried about someone tampering with a specimen? Instead, consider listening to see if someone is urinating, dying the toilet water, or looking into other options. The point is there are other much less invasive options.

Prescription Drugs in Particular

As we have established, it is one thing to test for use of illicit substances. We already know that is not a medical test and that it is not subject to ADA requirements or prohibitions. But what if you are also concerned about an employee abusing prescription drugs? This situation can get sticky. Many employees are using legally prescribed drugs. If those drugs do not pose any risk to their ability to perform their jobs safely, then you cannot reject a candidate or terminate an employee just because they take legally prescribed medications. That is likely an ADA violation.

So how do you make sure that you only reject candidates and employees abusing prescription drugs? Definitely the best practice is to have a Medical Review Officer (MRO) review the test results. In case the test shows a positive result for a prescription drug, the MRO would then contact the candidate for an explanation and give the candidate the chance to provide appropriate proof of a legal prescription and any other relevant proof. If she/he does so, the MRO marks the results “negative”. In case she/he does not do so the MRO marks the tests “positive” and informs the employer. If the candidate provides acceptable proof, but the MRO notes safety concerns, then the MRO can mark the results “negative with a safety concern”.

What about Employees Using Medical Marijuana?

While many states allow doctors to prescribe marijuana for certain medical reasons, federal law does not. You, therefore, can test employees for marijuana use. As of now, only Delaware and Arizona have laws that prohibit you from taking any adverse action against an applicant or employee for medical marijuana use that does not affect their ability to safely perform their jobs. Other states provide no such protection. Even in Colorado, a court ruled that employees can be fired for using medical marijuana. Note also that the ADA does not protect medical marijuana use. To read more about marijuana use in different states in the US, check out our Can You Have A Drug-Free Workplace Where Marijuana is Legal article.

Post-Accident Testing and Reasonable Suspicion

When an employee is involved in an on-the –job accident, you are allowed under federal –and most state laws– to require drug testing. Since you may be liable for the accident, you have a right to determine if the accident may have been caused in whole or in part by the employee’s own negligent or willful misconduct, which, of course, would include abuse of prescription or illicit drugs. The Occupational Health and Safety Administration (OSHA) requires that you have reasonable procedures for doing so, however. Since certain drug tests may actually deter an employee from reporting an accident, you should be aware of OSHA’s requirements.

What if there has not been an accident but other circumstances but you suspect substance abuse? Can you test then? Yes, if you have reasonable suspicion. What is “reasonable suspicion”? There has to be some objective indication that the person is abusing drugs. Speculation or guessing is not enough. You will want to document your concerns, so that you can defend against any allegations of discrimination, however. Here are some examples of reasonable suspicion:

· A report from someone you feel is reliable that the employee is using drugs;

· Direct observation of certain behaviors (e.g. slurred speech, uncoordinated movement);

· Significant drop in work performance;

· Erratic behavior at work;

· Evidence of tampering with drug test results;

· Other objective evidence of drug use at work.

Random Drug Testing

What if you don’t have reasonable suspicion? Can you conduct random drug testing? First check the laws in all states where you employ people. Some states require employers to have reasonable suspicion (unless an accident occurred). Even in those states that do allow it, proceed with caution. Make sure that your testing is truly random and does not give rise to discrimination claims. Monitor your testing. If more Black employees end up being “randomly” tested than White employees your policy may be vulnerable to discrimination claims. Even though the policy did not intend to discriminate, the fact that it had a disparate impact on one particular class of people protected under anti-discrimination laws can support such a claim.

One more thing: You can reject an applicant or fire an employee who flatly refuses to submit to drug screening. That said, however, if any employee asks for a modification to the testing as a reasonable accommodation for a medical condition, you may be required by the ADA to allow it.

Key Take-Away’s of Pre-Employment Prescription Drug Testing

When all is said and done here are some best practices that should minimize your risks:

· Check all laws regarding drug screening in all states where you employ people;

· Craft sound policies and procedures for drug screening if you have not already done so;

· If you do have drug screening policies and procedures, re-visit them. Have them reviewed by competent employment counsel;

· Consult with employment counsel before writing or changing your policies and if you are contemplating disciplinary action against an employee you believe has violated your policies.

Need help with Pre-Employment Prescription Drug Testing? These are just a few practices that could help you get started. But, if you have a comment or a question, our team of professionals is ready to assist! Contact us anytime and you’ll be a step closer to a right solution for you and your company!