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Drug Testing in the Workplace

Andrew J. Sherman, Partner, Dickstein Shapiro Morin and Oshinsky LLP

Employee alcohol and drug abuse is considered to be among the most common health hazards in the workplace. In addition to costing companies of all sizes millions of dollars in lost productivity, employers perceive drug use by employees as a threat to corporate security and an increased liability. As a result, companies are fighting back through the use of drug- and substance-abuse testing programs. While many of these programs have proven successful, private employers must be cautious of the potential legal problems involved in such testing.

Private-sector employees generally do not have a constitutional right protecting them from tests conducted by private employers as a pre-employment or in-term employment condition. However, to withstand legal challenges, your policies should be carefully drawn, based on legitimate business considerations, accompanied by reasonable safeguards and applied in a non-discriminatory fashion.

Application of Discrimination Laws to Drug-Testing Programs

An employee's abuse of, or addiction to, drugs and alcohol may be considered a protected handicap under federal or state law. Hence, when establishing a drug testing program to detect substance abuse among applicants or employees, you must consider laws that prohibit discrimination against the handicapped.

The federal Rehabilitation Act includes recovered substance abusers within the act's definition of handicapped. Although not directly applicable to private employers, the act applies to federal contractors and to some companies who provide goods or services either to the federal government or to contractors with the federal government. The federal Americans with Disabilities Act (ADA), which applies to private employers with 25 or more employees, also protects recovered substance abusers and alcoholics, since they are within the ADA's definition of disabled. However, the Rehabilitation Act will not protect current alcohol or drug abusers whose problem either prevents them from performing the duties of their job or constitutes a threat to the safety or property of others.

In addition to federal legislation, many states have laws prohibiting employment discrimination based on an individual's handicap, on the part of private-sector employers. If you want to avoid being sued under these laws, take the following steps:

  • Relate any actions taken on account of drug-test results to work-related matters such as overall performance, violations of rules governing intoxication in the workplace and the safety of all employees, including the person tested.
  • Grant individuals showing signs of alcohol or drug dependence the opportunity to seek and obtain rehabilitative treatment.
  • When accommodating these "handicaps," do not distinguish between alcohol- and drug-dependent individuals.

Note that these handicap laws do not preclude employers from enforcing rules prohibiting the possession or use of alcohol or drugs in the workplace, provided that such rules are enforced even-handedly against all employees.

Defamation Considerations

Employers must be careful to communicate only accurate information about employees. If you publicly disclose, to a third party, untrue private facts that are offensive and objectionable to a reasonable person of ordinary sensibilities, you may be liable for defamation. For example, an employer was held liable for damages for stating that an employee was terminated for drug use, where the company's only evidence was a polygraph result indicating that the employee lied when responding to a question concerning drug use.

Most states grant certain involved persons, such as personnel directors, supervisors, employees participating in an internal investigation or unemployment compensation commissions, a qualified privilege with regard to information concerning employee substance-abuse problems. You can divulge such information about these people on a need-to-know basis, as long as the information is not communicated with malicious intent. This qualified privilege also applies when a prospective employer is checking references. The previous employer must supply information as long as it is completely accurate and not given for malicious purposes. It would be permissible to state that an employee tested positive on a drug test, but the person should not be described as an "addict." To avoid problems involving this issue, you may adopt a policy stating that, when responding to reference checks, the company only supples the dates that former employees worked and the duties they performed. Some companies have developed a limited waiver and release form (to shield the employer against claims of defamation) if the former employee wants a more detailed reference.

Drug testing of current employees and applicants is increasing rapidly in private business. Therefore, businesses must be aware of potential legal problems when such tests are conducted. Because of the complexity of the legal issues involved, private employers should closely monitor all judicial and legislative developments relating to drug testing as they pertain to employers' current policies and procedures.

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