Do you require mandatory drug testing as a condition of employment? Many employers do, but have you considered whether a mandatory drug testing policy might be discriminatory?
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Let’s take a look at the concerns presented by this perspective—and what employers can do to ensure their policies stay within legal boundaries.
Why Drug Test?
The primary reason many organizations require drug testing is to keep the workplace safe. It can be argued that employers have an obligation to ensure that their workplace remains drug-free in order to create a safe environment for all employees. This, in essence, creates a legal liability for employers who haven’t taken steps (including drug testing) to keep impaired individuals off the premises—especially individuals in safety-sensitive roles. This is also the primary reason that drug tests are legal—the obligation to keep a safe working environment trumps an individual’s privacy rights in the eyes of the law.
Insurance discounts are another reason employers opt to implement drug testing. Some insurers, such as workers’ compensation providers, may offer discounts to employers who strive for a drug-free work environment. This is because impaired individuals are more likely to be involved in a workplace accident– thus increasing the likelihood of claims. By taking steps to ensure the workplace is drug-free, the employer reduces the risk to the insurer.
Yet another reason for drug testing policy is simple productivity concerns. Those who regularly take drugs or abuse alcohol may be more likely to be late or call in sick. While at work they may be less focused and productive. These are real costs the employer will have to bear.
Could Your Drug Testing Policy Be Discriminatory?
As mentioned above, it’s usually legal to require drug testing as a condition of employment, particularly because of the safety concerns described. However, the way the policy is implemented can make all the difference in whether the policy could be deemed discriminatory.
Here are a few examples of ways a drug testing policy could be discriminatory:
- Disability discrimination. Since some disabilities require medication, this medication may show up in drug test results. If the positive result on the test is from a prescription medication (assuming it is being taken in a way consistent with how it was legally prescribed), then it may be discriminatory to hold that against the applicant. Be sure to know when exceptions due to disability are appropriate.
- Inconsistent application. Another way that drug testing could be discriminatory is if the policy is not implemented consistently.
- For example, if applicants of a certain race or national origin are tested as a condition of employment but others applying for the same position are not, then that would be a discriminatory application of an otherwise legal drug testing policy. In short, it’s legal to test across the board as a condition of employment in a certain position, but it’s not legal to only test select individuals for the same position. (Note: it is legal to require drug testing for some positions and not for others, such as those with a safety concern).
- Inconsistent application can be a factor on the job as well, not just during the hiring process. For example, a policy that requires a drug test any time an employee is involved in an accident but is only enforced for some employees and not others would be potentially discriminatory.
- Addiction as a disability. The Americans with Disabilities Act (ADA) protects disabled individuals from discrimination if they’re qualified to do the job—and addiction can be considered a disability in some cases. In particular, those who have recently recovered from drug or alcohol addiction may be protected IF they’re now qualified and no longer abusing drugs or alcohol—and employers need to be aware of this. However, this protection does NOT extend to those who are currently using (or abusing) drugs in a way that is against company policy.
A final important note to remember: drug testing regulations vary at the state and local levels. They also vary by industry. Be sure to get legal guidance if you have questions about your drug testing policy.
*This article does not constitute legal advice.
About Bridget Miller:
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.