Employee Drug Screening Best Practices: Preventing Discrimination in the Workplace

Drug screening in the workplace has always been a complex process, but changes in recent years have led to additional layers of concern for employers. Marijuana legalization, automatic expungement, fair chance, and ban the box laws mean expecting an applicant to submit to a drug test is not straightforward. Navigating the compliance rules and the rights of job seekers and employees is complex. Additionally, you’ll contend with the logistics of organizing your screening program.

Individuals seeking employment have rights during this process. Respect is vital from an ethical perspective for your business and legal compliance. It is critical to understand what you can and cannot do. Likewise, you must also understand how to work within these boundaries, so it yields useful, actionable information for your hiring process or HR team.

Avoiding discrimination claims requires creating a fair and equitable process for everyone involved. It means setting aside biases and prejudices to build an impartial and reliable hiring workflow. Although drug use and employment testing are sensitive subjects that inspire many passionate points of view, there is a middle ground where you can protect your business and an individual’s privacy and rights.

In this white paper, we explore employment drug testing through the lens of employee rights and employer responsibilities. We’ll consider what laws govern this process, how you can respect individual rights, and uncover the best practices for today’s regulatory environment. As you read, remember that any state’s rules can vary substantially from another—so employers should never forget to speak to experienced local counsel, too.

To begin, let’s discuss the legal standards in play.

Understanding Employee Rights When It Comes To Drug Screening

Employers have a right to maintain a drug-free workplace. However, they may not enforce this right unfairly or discriminatory. For example, in the past, many more employers may have made fundamentally unfair assumptions about candidates as a precursor to ordering a drug test. Often, these assumptions had roots in racial bias or other forms of class prejudice—such as assuming an individual from an impoverished neighborhood is more likely to be a drug user.

Such thinking is harmful and unfair, mainly because it creates preferential treatment for applicants not subject to those assumptions. Discrimination comes from other places, too, such as simple observations of an individual’s behavior. What may seem like intoxication to some could be a medical condition. These uncertainties underlie the existence of regulations that establish employers’ rights to use drug tests and the civil liberties of applicants to receive equal, fair treatment.

Violating the laws that lay out these standards can lead to serious problems for your business. Some laws authorize actual financial penalties, while other violations could expose you to civil liability. A judgment against an employer could mean tens or hundreds of thousands of damages. Thus, it remains vital to understand the laws that demand you apply your testing standards consistently.

What are some of the fundamental legislations at play here?

Federal Drug Screening Laws

There is no federal law that mandates private employers to use drug tests. Likewise, no rules forbid employers from using tests. Legislation on this subject varies, but there are three laws that employers should consider when planning their testing policies.

The Drug-free Workplace Act of 1988. This law applies only to federal government offices and those companies contracting with the federal government on contracts or grants. Contractors working for the federal government and agencies must have a written drug test policy and a screening program. This law does not apply to the public otherwise.

The Controlled Substances Act. This federal law doesn’t concern drug testing but defines the federal government’s rating of a drug’s potential for abuse. Based on this rating, various controls may come into effect. Employers could use the CSA as a guideline to understand what substances to screen for. However, keep in mind that marijuana is still classified the same as dangerous opioid medication - so it’s not the most current guideline.

The Americans With Disabilities Act. The ADA doesn’t prohibit employee drug testing but does mandate non-discrimination against recovering addicts. Employers cannot hold past drug use against rehabilitated users during hiring. A history of abuse is not an acceptable reason for declining an application. Likewise, you cannot decline applicants only because of their active enrollment in rehab programs.

State Drug Screening Laws

With 50 states and 50 sets of legislation, we don’t have the space to cover every variance. However, what is important to note is that most states have engaged in at least some legislative action on this topic. Exceptions include states such as Arkansas, Indiana, and Kentucky, which have no state legislation for drug screening. Thus, the only rules in place are federal laws about non-discrimination.

Other states, such as California, restrict when and how to test for drugs. In California, you must make a conditional offer of employment to a candidate before conducting drug screening. Beginning in 2024, California will also ban the use of testing for marijuana. Other states, including New York, have followed suit on that front. Employers in states with legal recreational or medicinal marijuana should consult a lawyer about what testing to do.

Industry-specific Drug Screening Laws

The only federal requirement for drug testing that any private employer faces comes from the Department of Transportation. DOT-regulated companies, such as trucking carriers, must conduct random drug testing and DOT-authorized tests on all employees.

Even without federal requirements, many industries will have some requirements as routine expectations, especially in healthcare, childcare, and security. States may demand a clean drug test for those working with older adults or in a daycare setting. Hospitals may want to clear nurses or pharmacists of any suspicion of drug use to allow safer access to their medication stores. Many states also require drug tests for employment within the state itself.

Changing Legislation for Marijuana Drug Screening

In the past, a stereotype existed surrounding marijuana users: an image of a person far more paranoid about a possible drug test for employment and willing to go to any length to produce a clean test. Indeed, a positive test for cannabis consumption was often all an employer needed to decide to move on to a different candidate. Today, that’s less often the case.

Twenty-three states now consider recreational marijuana legal, and many more have favorable medicinal laws. Even though it is still federally illegal, the appetite for enforcement at that level has waned in recent years, too. As a result, employers need to consider two things: whether testing for cannabis is still worthwhile and what to do about old drug charges that may appear on background checks.

New Jersey, New Mexico, New York, and Virginia all have recreational cannabis. These four states have also enacted laws to facilitate the automatic expungement of certain cannabis-related convictions. Other states have petition-based processes, and still more have legislatures considering automatic expungement. The message is clear: these old, low-level charges should no longer be a barrier to a job.

Employers in such states must work with screening services that closely monitor the changes in these laws. Your partner should consistently remain compliant by keeping their sources up-to-date. Otherwise, you might risk making a decision based on irrelevant information.

Some states, including New York, have also banned the consideration of off-duty marijuana usage. With positive drug tests on the rise, especially for cannabis, it’s vital to use the correct types of drug tests in these states. You may simply need to disregard cannabis positives on multi-panel tests.

Legislative action in this area remains ongoing, and changes frequently occur from year to year. Your business, too, should monitor these changes and be ready to respond with policy changes.

How To Protect Employee Rights During the Drug Screening Process

Understanding the law is only the beginning of creating smart drug screening policies. In which concrete ways do you structure your hiring process tools effectively and legally? An excellent first step is creating a procedure with the law as a guideline. Making a proactive effort to respect job applicants and honor their rights is also essential. Good company culture goes a long way towards the flexibility necessary in this area.

Your practices should focus on abiding by the law and applying tests equitably across your organization. There are two critical elements to this. The first requires you to be honest and open about the process, while the second is about confirming your findings before rushing into final decisions. 

Provide Candidates With Information About Your Process

Educating employees and applicants about the process helps to de-mystify drug testing and may alleviate many concerns people may have about your policies. Additionally, good communication helps to satisfy some of your compliance requirements. To wit, you should always inform candidates and employees of their rights during the drug testing process, including the opportunity to dispute the results. Likewise, you should also explain their responsibilities and cover what types of positive tests aren’t acceptable.

You may also explain the various types of drug testing available and which your business uses. Candidates often want to know what testing they must undergo. Always allow enough time for candidates and employees to visit testing sites for the sample submission. In some states, courts have ruled that employees required to visit off-site testing facilities require compensation for their time. Check the laws in your area.

Ensure You Can Obtain Relevant Second Opinions

While 100% accuracy would be ideal, it’s not achievable in drug testing. False positives can and will occur occasionally. Knowing how to identify them and how to respond is essential. You should always be willing to discuss options with candidates who insist that a positive test is erroneous. False positives can arise for strange reasons. After all, eating too many poppy seeds on a hamburger bun or a bagel one day could lead you to test positive for opiates the next. Allow for re-testing and the gathering of second opinions in such circumstances.

As noted earlier when discussing the ADA, there are also prescription medications that may appear as a positive on a drug test. Even though that may be true, these are legitimate prescriptions (such as for the ADHD drug Adderall), and you cannot deny a job based on such a test. Be aware of the substances that can produce skewed results. Alternatively, you can work with a medical resource officer at a screening company to identify potentially problematic drug test results.

Best Practices for Handling Employee Drug Tests in a Fair and Equitable Manner

Thinking about the experience that applicants have is only one part of the picture. Getting a handle on the best practices your business should use is also critical. You’ll also need to plan procedures for pre-employment and post-hiring testing of your workforce. Many employers prefer using a randomized system that never singles out a particular person—how should you set up such a program?

Let’s consider some specific drug testing best practices that you could incorporate into your organization’s operational standards.

Make applicant privacy a priority

Drug testing should receive the same level of consideration for confidentiality and privacy as any medical procedure. When you think about it, that’s precisely what this process is. Therefore, you should strive to maintain an atmosphere of respect for the applicants. For example, sample collection should always occur privately, especially during immediate on-site tests such as a saliva swab. Using third party labs where applicants may submit testing specimens is also advisable.

Protect all applicant information related to testing and results. Limit the number of people in the organization with access to such information. Destroy drug testing records after the appropriate time to avoid unnecessary private and personal information retention.

Build clear, compliant drug testing policies

No one should experience surprise as a result of your drug testing policies. When drug testing for hiring purposes, always ensure that your applicants fully understand the requirements upfront. Place language about drug test expectations in job advertisements to communicate your expectations unambiguously. You should also be clear about when and how you will conduct testing.

When testing existing employees, be sure your staff has a clear code of conduct they know to follow. For example, in states that allow recreational marijuana, you may make it clear that off-duty use is not an issue, but on-duty usage or clear signs of impairment are severe infringements. 

You may also create a warning or diversion system for employees who test positive. Rather than terminate their employment immediately, you might offer a second chance and a rehabilitation program to put employees back on track. Whatever you decide, be sure your policy is clear, in writing, and available for employees to review at any time.

Define your justifications for using drug tests

Your employees should understand what to expect from your screening policies and how you justify testing existing staff. Will you only use the basis of reasonable suspicion, or will you use randomized drug testing? Some employers use both.

You will need employees trained to report such concerns when testing by reasonable suspicion. Otherwise, testing can quickly become a problematic area ripe for abuse by retaliating employees. Regardless, as an employer, it’s within your right to test individuals because they exhibit clear or recurrent signs of intoxication that a medical condition would not explain.

In contrast, random testing is a deterrent against drug use rather than a surefire means of detecting employee usage. Which approach you prefer will depend on the needs of your business. Both have pros and cons, especially regarding how employees will accept or react to the system. 

Ensure equal treatment for all

Consistency is truly the key to a successful drug testing policy that helps you avoid legal hot water. The name of the game must irrevocably be “no exceptions.” Everyone must submit to them if you use drug tests in the workplace. That means everyone from the lowest entry-level worker to the C-Suite executives. Otherwise, you’re applying different standards to different workforce classes, which is not worth the risk in today’s litigious environment.

Just as you should ensure your standards apply to everyone, those standards should remain the same, too. Choose the same drug test to use on everyone. Don’t apply more stringent tests to only some employees. Standardizing your tests allows you to evaluate and compare results more efficiently while avoiding potential legal peril.

Drug Testing for a Unionized Workforce

Some workplaces involve employee unions. Likewise, unionization defines some industries. If you operate in a unionized space and do not already have a drug testing policy, you will need to plan carefully before implementing one. According to the National Labor Relations Act (NLRA), unions and employers must come together “in good faith” to discuss various issues, such as the “other terms and conditions” of employing individuals in the company. Drug testing falls under this broad umbrella.

In other words, any drug test policy must be a part of your Collective Bargaining Agreement (CBA) with the union. Deploying an approach without consulting union representatives will almost certainly lead to a grievance and a lengthy (and costly) arbitration process. Developing your policy in advance and bringing the union to the table for their input is the best way to go. Remember, you do have the right to maintain a drug-free workplace.

However, union input may determine how you create that policy. Pre-employment drug testing and random post-hire testing are both viable options for discussion, as is the usage of testing based on reasonable suspicion. You cannot arbitrarily implement policy changes without union consultation–instead, work towards an equitable solution.

Conclusion

Any pre-employment drug test is a subject of law - from the broad regulations outlined in federal law to the specific nuances of state regulations. While a valuable tool for employers, it is critical to use it correctly—and consider how its use may impact those seeking jobs with your organization. You can attract quality candidates by demonstrating respect for applicants without compromising your safety principles.

Now is the time to ensure that your business fully adopts the best practices for drug screening. As the regulatory environment continues to shift, establishing compliance today will ease any future adaptations. By considering employee and applicant rights, you can create a process that’s not only legal but also more fair to everyone involved. Take the opportunity to review your company’s approach today.