5 Legal Considerations regarding Employee Drug Testing

November 4, 2014 2 MIN READ

Employee drug testing has been around for some time, with more and more employers recognising its benefits as far as health and safety in the workplace are concerned. However, employee drug testing has always been a tricky issue. There are a lot of legal factors to be taken into consideration, and that is why we have been constantly reminding employers that if they’re thinking about instituting an employee drug testing program, they should run it by their lawyers first before implementation to avoid any legal issue that may arise.

So if you’re an employer and you’re thinking about testing your workers for drug use, here are 5 legal considerations about employee drug testing.

1. Test one, test all

Many opponents of employee drug testing decry the fact that only some employees are actually singled out for drug testing, particularly in random drug testing programs. If you have to test one, you might as well test them all. Though laws don’t really clearly state that you have to test all your employees, testing just a handful of employees could expose you to the possibility of anti-discrimination lawsuits. Let’s say that you had those handful of employees tested because of suspicions of substance abuse at work on their part. Even if you’re intentions are on point, that could be construed as singling people out based on race, gender, income level, or any protected status, and you certainly wouldn’t want to deal with that kind of problem.

2. Make sure the drug test is accurate

Many employees meted disciplinary action after testing positive in a drug test often go to court questioning the accuracy and reliability of the drug test used. While drug testing technology is not infallible, the more expensive drug tests tend to be more accurate. Conversely, cheap screen tests — which many employers use to save money — are notorious for turning out false positive results, which expose whatever disciplinary actions taken to a legal challenge.

3. Non-discriminatory pre-employment drug screening

If you’re going to require job applicants to undergo drug screening before hiring them, just make sure that the testing procedures are fair, strictly related to the job, consistent, and most importantly, non-discriminatory. You need to be aware that any drug test that will be perceived as discriminatory in any way will expose you to discrimination claims. Also, it’s advisable to give them a conditional job offer first before requiring drug testing. That way, job applicants won’t feel like their privacy is being invaded even when there’s no assurance they’ll be hired.

4. Always get samples with consent

Always test honestly, and that means picking up an employee’s stray hair from a desk is out of the question. Sneakily getting a specimen sample from a worker or a job applicant without any consent is more than just dishonest. It also happens to be unlawful.

5. Always consider state-specific laws.

Your organisation is subject to Workplace Health Safety or WHS laws, regardless of the number of your workers. These WHS laws, however, may vary from state to state, particularly with regards to drug screening. So if you’re planning on testing your workforce for drugs, make sure you’re familiar with the WHS laws of the state or states you’re operating in.