Drug Testing Policies

On October 30, 2014, backgroundchecks.com issued a compliance update on the subject of drug testing and the Americans with Disabilities Act (ADA). Since that update, another large retailer has settled a lawsuit with the Equal Employment Opportunity Commission (EEOC) for alleged violations of the ADA.

The facts in the two cases are similar in that both employers allegedly failed to hire applicants who could not perform a pre-employment urinalysis drug test because of a disability. In light of these two settlements with the EEOC, now is a good time to review your pre-employment drug testing procedures to ensure they are compliant with the ADA and other anti-discriminatory laws.

First, it is wise to have a clear, written drug-testing policy in place. This will limit claims that your testing is discriminatory or without clear intent. Your policy may include any number of requirements, including answers to the following questions:

• Will the test be conducted by your staff or by an outside company?
• What types of tests will be used (e.g., urine, hair, sweat, saliva, etc.)?
• What types of drugs are you testing for (e.g., standard panel of drugs, steroids, other specific drugs)?
• How are individuals selected to undergo this screening?
• How will the test results be protected or kept confidential?
• What are the consequences of a positive drug test?
• What are the consequences of a refusal to take the test?
• What recourse does an individual have if he or she thinks that a positive test was a mistake?
• What happens if the individual cannot provide a urine specimen?

Because company personnel are not always aware that a disability may be the reason for an individual’s inability or refusal to provide a urine specimen, procedures should be in place to protect the company and the individual in these situations. A good practice is to have a policy instructing managers and supervisors to escalate matters to the human resources department whenever an individual cannot provide a urine specimen. Another good practice is to include an interactive section on your drug testing consent form that instructs the individual to indicate his or her inability to provide a urine specimen, and directs the individual to escalate the matter within the company’s human resources department.  Finally, every drug-testing policy should include an alternative form of drug testing.

We recommend that you contact your legal counsel for a review of your drug testing policy to ensure compliance with the ADA and other anti-discrimination laws.

What this update means for you:

• Employers should consider creating a drug testing policy.
• Drug testing policies should address what to do if an individual refuses or is unable to provide a urine specimen.
• You should work with your lawyer to create a drug testing policy.