Business Necessity Cannot Extend to Past Drug Use | DCR Workforce Blog

Business Necessity Cannot Extend to Past Drug Use

Business Necessity Cannot Extend to Past Drug UseThe 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:

  1. An employer cannot test only a select few applicants, out of a pool of people who applied. All applicants to a job must be treated in the same manner.
  2. Many states limit the type of testing to non-intrusive methods through the use of urine, breath, blood or hair; which provides an accurate result for drug use over a 90-day window.
  3. The testing requires the consent of the applicant and cannot be conducted using a covert, involuntary method like using the fallen hairs left behind by an applicant on chair upholstery.
  4. Collection of samples may be supervised by the employer, using a person of the same gender as the applicant.
  5. The testing laboratory needs to be authorized to conduct such testing.
  6. The test results must be kept private and may be divulged to people on a strict need-to-know basis.

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.

  • Establish a clear policy on which drugs to test for. Most companies elect to check for alcohol, opiates, hallucinogens, amphetamines, and designer drugs. List the drugs to be checked in the policy.
  • Decide on the course of action to be adopted when a candidate tests positive. This may state “never hire”, “hire, conditional on undergoing alcohol/drug counseling and withdrawal”, or other options. The key is to be consistent in responding to positive tests.
  • Build a process that formally notifies the candidate and allows the candidate to respond. There may be extenuating circumstances that warrant additional testing or other actions.
  • Document everything!

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.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.