Setting Up a Pre-Employment Drug Testing Policy
Not so long ago, drug testing was a common step in the hiring process. But as laws governing health, disability, and the medical and recreational use of cannabis have become more complicated, so too have the factors that employers should consider as they decide whether to implement a pre-employment drug testing policy.
Even the federal government’s Drug-free Workplace program, which once spearheaded employee drug screening, now encourages employers to use drug-testing to identify employees who can benefit from “treatment, rehabilitation, and re-integration into the workplace,” not as a filter to bar employment or a reason to terminate employees.
The situation is a bit trickier in sectors where workplace safety is vital. The information below can help you weigh the options, limitations, and the potential benefits of drug screening before you decide whether to you implement or revise your testing policy.
Why Should You Screen for Drug Use?
Pre-employment drug testing can help identify employees who may benefit from drug counseling or in-patient or out-patient drug treatment programs. If employees continue to use illicit drugs or abuse controlled substances, and it negatively impacts their work, post-treatment drug screening can help you to build a case for termination.
Drug screening can save you money by:
- Reducing the risk of workplace injuries and accidents
- Discouraging and preventing drug use
- Reducing turnover and absenteeism
What Drugs Do Most Tests Screen For?
Drug tests can detect substances that may be legally and necessarily prescribed to your employees for conditions ranging from anxiety to cancer to arthritis, but the most common drugs that are detected by drug screening are:
- Phencyclidine (PCP)
- Cannabis (aka, marijuana)
Even among this short list you may unintentionally trespass upon applicants’ medical privacy. Amphetamines are used for a range of legitimate health issues, all of which would be covered by ADA. Cannabis and even opiates can be used to treat chronic pain or terminal illness, and cocaine is still sometimes used as an anesthetic for particularly delicate surgery and could consequently turn up in a drug screen, opening yourself up to accusations of bias and potential lawsuits.
How Do State Marijuana Laws Affect Employer Liability?
State laws on drug testing, especially for cannabis use, vary widely. In addition, some cities, including New York City, prohibit nearly all testing for cannabis. The American Civil Liberties Union (ACLU) provides a frequently updated table that lists state laws governing employee drug screening.
Note: Try to avoid the use of the term “marijuana” when referring to cannabis, which is based on the Spanish word for the flowering component of the cannabis plant and considered by many to be offensive to people of Mexican descent and Latinos in general.
What Steps Should You Take to Implement a Pre-Employment Drug Testing Policy?
- Know the Law. Employers with federal contracts of more than $100,000 and many federal grant recipients are required to implement drug tests. However, those same mandates require companies to implement employee protections, including the opportunity to contest positive results. You also need to be careful not to single out people who “appear” to be under the influence of drugs since this may be due to a medical condition and thus covered by ADA.
- Have a Consistent Written Policy. By law, you must have a written policy that is easily accessible to employees and perspective hires and this policy must be in place for 30 days before you begin testing. SHRM provides an easily modified sample. Be sure to cover the costs of all testing, including last-chance and post-treatment tests. Not only is it the right thing to do, but some states prohibit employers from charging employees for screening costs.
- Determine What Type of Test You Need. Urine analysis is by far the most common way to obtain sample for testing, with blood testing being fairly rare. If what you are interested in is on-the-job safety, implementing frequent, randomized urine or saliva tests may be the best approach. If you are more concerned about habitual use, consider investing in hair follicle testing, since substances can be tested using this method for much longer durations.
- Find a Reliable Test Kit Provider, a Qualified Lab, or Comprehensive Vendor. SHRM provides a frequently updated list of testing vendors, ranging from offsite labs to companies that will come to your workplace to collect specimens to vendors that will oversee every aspect of your company’s drug testing, treatment, and prevention program. The U.S. Department of Health and Human Services publishes a list of certified testing centers, which is updated frequently and organized by state.
When Should You Test Candidates and Employees?
Random testing is probably the most successful way to detect habitual drug use; however, employers may also want to consider testing in the following circumstances:
- Pre-employment: By far the most widely used, a pre-employment drug testing policy typically times screenings to take place after an offer has been made but before the candidate’s first day on the job.
- Annual physical: These tests are implemented along with other health screenings provided by the employer. Due to your employees’ rights to privacy when it comes to their health, you’ll need to guarantee the security and privacy of employee health records. You also must alert your employees that drug screening will be part of their annual checkup.
- Reasonable suspicion: If you have documented a pattern of unsafe behavior, you may ask to test an employee as a condition of their continued employment.
- Post-accident: In this case you would want to request to test all employees who were involved in the accident to determine if drug or alcohol use played a part.
- Post-treatment: Knowing that they will be subject to drug testing after employer-provided treatment has been shown to help employees remain committed to their treatment program in the critical first months after completing their program.
Are There Drawbacks to Drug Screening?
The drawbacks and benefits of implementing a pre-employment drug testing policy depend on your goals. If you aren’t using the right test for your circumstances, you could be spending money and incurring potential liability for no good reason.
Societal attitudes about drug use and abuse are shifting, with increasing numbers of job seekers viewing recreational use of legal substances as a private matter and substance abuse as a mental health issue deserving of compassion and employer-provided care options. Your pre-employment drug-testing policy may discourage highly qualified candidates from applying to work at your company.
Is There a Better Way to Discourage Substance Abuse?
There a better ways to screen applicants to make sure that they will be honest, conscientious, and reliable workers than by using tests that can be thwarted and are just as likely to uncover health issues covered by the ADA as they are to unearth substance abuse.
A comprehensive policy that offers mental health benefits rather than retribution to employees struggling with addiction, and highlighting these policies in your HR literature, will help cement your reputation as an employer who prioritizes wellness, which can be very attractive, especially to highly qualified and younger applicants.
Learn About the Latest Practices in Employee Screening and Testing
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