The phenomenal success of Steve Jobs as an entrepreneur was undeniable, but how many of us realize what it also protected him from! I refer to his drug use history which became public knowledge through the FBI’s recently released 191 page file on Mr. Jobs. With such a public record, I could not help but wonder what employment challenges he would have faced if he had chosen to seek an executive position with a large corporation rather than pursuing his own path! According to guidance from the Equal Employment Opportunity Commission (EEOC) – nothing, because employers are not allowed to base negative employment decisions on a person’s record of past drug use.
Employers’ right to drug-free workplaces is undeniable – especially when they can cite business necessity, like federal contracts or workplace safety as a reason to keep them so. Drug abuse also is suspected to lead to less productivity. Most employers make pre-employment drug testing mandatory, while some conduct random drug tests or suspicion tests on tenured employees, especially following a workplace accident. However, it is common knowledge that companies that screen for drugs find that 3 – 4% of workers test positive for substance abuse when random tests are undertaken. We can only assume that the actual percentage exceeds that number.
This blog offers practical guidance on conducting employee drug testing, responding to results, and dealing with workers who have a past history of substance abuse.
Some Dos and Don’ts for Employers:
Employers usually conduct drug-testing after offering a position to an applicant. The offer is contingent on acceptable results to this and other tests. Legal requirements make it necessary for the employer to avoid some specific situations. For instance:
Create a Drug Testing Policy:
It is necessary to establish a written drug testing policy which governs the process of drug testing, the various steps involved and how they need to be managed.
Guidance from EEOC:
When defining your corporate policy, remember that the EEOC has its own take on permanently disqualifying applicants who fail drug tests.
According to the EEOC, “Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.”
So, while employers will not be violating the rules of the Americans with Disabilities Act (ADA) when they require an applicant or employee to undergo testing for drugs, they may cross the line if they choose to discharge an employee or deny employment to an applicant who has a past history of substance abuse but passes a drug test.
It has been clearly explained by the EEOC that, ‘An addict who is currently in a drug rehabilitation program andhas not used drugs illegally for some time is not excluded from the protection of the ADA.” So, unless a person is caught through a drug test and found to be a current user of drugs, ADA protects drug users who have made efforts to shed their addiction. A current user cannot enroll in a rehabilitation program to claim protection from this rule, but someone who has a public record of past drug abuse can definitely claim this protection.
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