Understanding drug tests and consent

Because employee drug use can have a negative impact on a business, many employers find it useful to conduct employee drug testing, both to keep their businesses free from the disruption drug use can cause, and also for the safety of their employees. However, it's important for an employer to understand the basics of employee drug tests, as well as the issue of consent to such testing.

Drug tests in the workplace

One of the complications of employee drug testing is that, depending on your industry and the state in which you operate your business, there can be applicable federal or state laws with which you must comply.

At the federal level, laws like the Drug-Free Workplace Act of 1988 and the Omnibus Transportation Employee Testing Act of 1991 must be carefully considered when implementing an employee drug testing process in your workplace. Additionally, state laws regarding drug tests and consent vary considerably from state to state, so further research should be conducted to help ensure your drug testing policies and procedures are in compliance with applicable state laws.

Pre-employment drug testing

Many businesses require job candidates to undergo pre-employment drug testing. If you wish to implement a pre-employment drug testing procedure, it's important to consult your state laws first. While most state laws permit employers to require job applicants to take a drug test, legislated requirements will vary from state to state.

For example, many states require employers to give advance notice that pre-employment drug testing is required. This notice is often required in the job posting itself, or on the job application form. A state also may require that a job offer must have been given to the applicant first, before the drug test can be conducted. Discriminatory practices are generally prohibited. This means that you cannot test only selected applicants. Your testing policy must apply across the board.

While an applicant can refuse to take a pre-employment drug test, employers also are free to drop such applicants from consideration for employment. Additionally, employers can withdraw job offers from candidates who fail the drug test.

Drug testing of current employees

Again, state laws vary when it comes to ongoing tests during the course of employment, so it's important to check your local state rules when you're devising drug testing policies and procedures. While most state laws permit employee drug testing, the circumstances under which an employer can request that an employee submit to drug testing varies from state to state.

For example, while some states permit employers to conduct random drug tests so long as notice is provided, other states permit drug testing only in specific situations, such as during post-work accident investigations, or in cases where the employer has reasonable suspicion that an employee is taking drugs. Examples of reasonable suspicion include:

• Erratic behavior while on the job
• Symptoms of drug use
• An employee's being observed taking drugs

Obtaining employee consent

It's important that employers obtain written consent from their employees before conducting drug tests. The drug testing consent form not only gives permission for a health professional to conduct the drug test, but it also permits the lab processing the test results to provide these results to the employer.

As an employer, you should not give employees a drug test without having received consent. Samples of consent forms are available online and can provide a good starting point for the development of a drug test consent form that is suitable to your needs.

Before you begin drafting your employee drug test consent form, however, you should first clarify what you will be needing the form for. For example, a random drug testing consent form will be different from one that provides consent for a one-time drug test. And, similarly, a pre-employment drug testing consent form will need to be different from one you give to employees for regularly scheduled drug tests.

Employees and applicants have the right to refuse to undergo employer-requested drug testing. However, depending on state laws, employers may have the right to terminate employment based on a refusal to consent to a drug test. Some states even have legislation denying former employees from obtaining unemployment benefits if the reason for their termination is their refusal to take a drug test.

Drug testing in the workplace can be beneficial for businesses, particularly those in industries where drug use can result in a risk of harm to others or to property. When implementing employee drug testing policies and procedures, it's important for employers to carefully consider and comply with applicable federal and state laws, and to obtain drug test consent forms from employees prior to testing.