On November 3rd, 2014, Liberty reported a compliance update on the subject of drug testing and the American's With Disabilities Act (ADA). Since that update, a large retailer has settled with the Equal Employment Opportunity Commission (EEOC) for alleged violations of the ADA. Both employers alegedly failed to hire applicants who could not perform a pre-employment drug test because of a disability.
Now is a good time for you to review your pre-employment drug testing policies to ensure they are in compliance with the ADA and other anti-discriminatory laws.
You should ensure you have a clear, written drug test policy in place. This can limit claims that your program is discriminatory or without intent. You may consider including any number of requirements, including answering the following questions:
- Will the test be conducted by your staff or by an outside company?
- What types of tests will be used (urine, hair, sweat, saliva, etc.)?
- What types of drugs are you testing for?
- How are individuals selected to undergo screening?
- How will the test results be protected and kept confidential?
- What are the consequences of a positive drug test?
- What recourse does an individual have if he or she thinks that a positive test was a mistake?
- What happens if the individual cannot provide a urine specimen?
Company personnel are not always aware that disabilities may hinder a candidate's ability to provide a urine specimen, procedures should be in place to protect the company in these situations. Consider having a policy instructing managers and supervisors to escalate refusals to the human resources department. Also consider including interactive sections on your drug testing consent forms that instruct the individual to indicate their ability to provide a urine specimen and to escalate the matter within the company's human resource department.
Every drug testing policy should have an alternative form of drug testing.
We recommend you contact your legal counsel for a review of your drug testing policy to ensure compliance with the ADA and other anti-discrimination laws.