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Do You Have a Drug Testing Policy?


Employees who use illicit drugs are more likely to miss or skip work, which can be especially problematic for small-business owners. When drug users are in the office, they may be less productive and even a distraction. This is why many employers require a drug test at the time of hiring. Understanding when it is and isn't legal to test workers is crucial to protecting your business from legal issues in the future.

Your state may determine when and under what circumstances you can administer drug testing. In many states, drug testing of job applicants is permissible only when the job offer has been made. In New York, for example, drug testing is acceptable only when employees have signed a written policy agreement and the business has provided 60 days' notice.

Virginia requires employers to pay for the testing rather than asking workers to do so. If you do drug test employees, and your state allows you to do so, it's important that you follow the correct screening guidelines to protect your business and avoid potential lawsuits.

There are several events that can prompt drug testingpre-employment, reasonable suspicion, post-accident and random drug testing. Pre-employment testing is generally allowed, and state laws may dictate when testing can be done and how job applicants must be notified. And you should be aware of any city laws that govern drug testing. Boulder, Colorado, and San Francisco have their own rules.

Random drug tests are restricted in some state—Massachusetts, for example—while being prohibited in others—like Vermont. Some states limit testing methods; urinalysis is typically permissible, but hair follicle or saliva tests may be prohibited.

A number of states restrict a company from randomly testing employees unless they work in such safety positions as transportation—e.g., airline pilots, truck drivers—because workers whose jobs require them to drive buses, fly airplanes or operate heavy machinery on a regular basis could pose a serious danger to others if they use illicit drugs.

Most private employers aren't required to have a drug-free workplace policy, but you need to ensure that your drug-testing procedures don't violate the Americans with Disabilities Act. The act allows you to prohibit the use of drugs and alcohol in the workplace and to take adverse action against current illegal drug users. But the ADA doesn't allow employers to discriminate against recovering alcoholics or rehabilitated drug users who have sought addiction treatment.

A drug test can't differentiate between a prescription opiate and heroin, so employers shouldn't jump to conclusions based on a positive result. States may enact policies relating to the courses of action a company can take after an employee fails a drug test. In California, you need to accommodate workers who want to enter substance abuse treatment programs.

No matter which state you operate in, the law requires that employers take steps to protect employees who are being drug tested. You want to take care to develop a random process for selecting workers to be tested, or test all workers at once.

If you do decide to screen your employees, be sure to follow all the state and regional guidelines for your area. This is the best way to protect both you and your workers in the long term. Viewing your state-specific policies and guidelines is the best way to make sure you aren't violating any rules during your quest for a drug-free workplace.

A summary of state drug testing policies can be found at the ACLU website. However, laws can change frequently, and court rulings can also modify regulations. It's wise to check directly with relevant state agencies before implementing a policy.


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Our firm provides the information in this e-newsletter for general guidance only, and does not constitute the provision of legal advice, tax advice, accounting services, investment advice, or professional consulting of any kind. The information provided herein should not be used as a substitute for consultation with professional tax, accounting, legal, or other competent advisers. Before making any decision or taking any action, you should consult a professional adviser who has been provided with all pertinent facts relevant to your particular situation.The information is provided "as is," with no assurance or guarantee of completeness, accuracy, or timeliness of the information, and without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, and fitness for a particular purpose.
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