Drug Testing

Whether your small business already has an employee drug-testing or drug-free work policy, or is considering adopting one, first know this: The National Drug-Free Workplace Alliance says small businesses bear the greatest burden of substance abusers.

Why? Drug users might be less likely to apply to jobs at large companies, which traditionally have established, companywide policies on drug use. Instead, they may seek employment at small companies with fewer resources (and motivation) to perform tests.

If you don’t drug-test employees, your business could be at risk for negligence lawsuits from customers and employees, says Jesse Berger, CEO of Navicus, a Boca Raton, Fla., company that provides third-party drug testing for businesses. For example, if an employee high on drugs stumbles and falls, injuring a co-worker or customer in the process, your business could be sued for negligent hiring. “The plaintiff could ask, ‘Why didn’t you drug-test?’” says Berger.

If your small business is thinking about drug-testing applicants or employees, here are five important legal implications to consider.

1. If you test one, you should probably test all

The law doesn’t explicitly say businesses that drug-test must test all employees. But if you don’t, you open up your business to a host of anti-discrimination lawsuits, says Berger. Say, for instance, you test only employees you suspect of using drugs. Someone might construe this as singling out certain people based on income level, race, gender, or other protected status.

2. If you receive federal funds, drug testing is required

The Federal Drug-Free Workplace Act requires businesses with $100,000 or more in federal contracts to test all of their employees for drug use. This also applies to businesses that receive federal grants.

3. In order to test job applicants, you might have to first offer employment

If your business employs 15 or more people, it must follow the Americans With Disabilities Act, which makes it illegal for any employer to test a job applicant without first making a conditional offer of employment. So, it’s generally OK to test applicants—but only those who have a contingent offer on the table.

4. Test honestly

Don’t try to get a specimen sample from an employee or job applicant without his or her consent—this is unlawful. (So don’t pick up a stray hair from his or her desk to send to a lab.)

5. Don’t forget state-specific laws

The Department of Labor ended its drug-free workplace program in 2010, possibly due to several states looking into the legalization of medical and recreational marijuana use.

Each state also has its own set of rules and regulations regarding small business drug-testing—including the conditions required and methods of tests permitted on both applicants and employees—and its own drug-free workplace programs. Find an overview of state-by-state small business drug testing laws here.

In Alabama, Illinois and Virginia, for example, businesses cannot require employees or job applicants to pay for testing themselves. Similarly, state drug testing laws change and evolve from time to time, especially as legislation around marijuana is being added or revised.

If you follow the rules and requirements outlined in your state’s program, you’re afforded certain protections. Tennessee’s program, for example, protects participants from lawsuits surrounding the discharge or discipline of an employee when that employee has violated the drug-free policy.

Watch NFIB Webinar: Marijuana in The Workplace: Strategies for Breaking Through the Haze

For additional guidance on how to prepare an employee handbook discussing drug testing or drug free workplace policies for your small business, check out NFIB Legal Center’s Model Employee Handbook. It’s free!

If you have more legal questions or concerns about your small business, contact the NFIB Legal Center at 1-800-552-NFIB.

Disclaimer: This article should not be taken as legal advice.

Source: NFIB

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