The Facts About Drug Testing During the Hiring Stage
No employer likes to hire someone who may be prone to using drugs or alcohol while at work. As a result, many private and some public employers now attempt to test prospective employees (and employees already on staff) for drug and alcohol use. These tests are not always legal, however. The following provides information on when, and whether, a drug test may be used in the pre-employment phase.
Testing and Employee Privacy
The United States Supreme Court has held that both blood and urine collection are minimally intrusive procedures which are not harmful to job applicants or employees when they are conducted in the context of an employment environment (such as where applicants or employees are required to go to a doctor's office to provide a sample) without direct observation by the tester. In other words, it may be an invasion of privacy for an employer to require a job applicant to provide a urine sample while other people are in the room watching. However, if there are concerns that an applicant will tamper with the sample, the employer may be allowed to have one other person of the same sex as the applicant present when the sample is given. It is vital that you consult with an employment law attorney before instituting any drug/alcohol testing policy for your business.
Federal Law
The major federal law governing the use of drugs and alcohol in the workplace is the Drug-Free Workplace Act of 1988. This Act basically states that any employer who receives federal grants or contracts must be drug-free, or it risks losing the federal funding. The Act does not, however, contain any provisions that specifically allow for workplace drug testing.
In addition to the federal Drug-Free Workplace Act, other federal laws also touch upon and concern drug use in the workplace, such the Americans with Disabilities Act (which classifies alcoholism as a protected disability) and the Family and Medical Leave Act.
Specific federal agencies or departments may also have drug-testing policies in place. For example, the Department of Transportation has regulations that require drug-testing of more than 8 million different employees, such as over-the-road truckers.
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