The U.S. Supreme Court has held that both blood and urine collection are minimally intrusive procedures which are not harmful to job applicants or employees when they are conducted in the context of an employment environment (such as where applicants or employees are required to go to a doctor’s office to provide a sample) without direct observation by the tester. In other words, it may be an invasion of privacy for an employer to require a job applicant to provide a urine sample while other people are in the room watching. However, if there are concerns that an applicant will tamper with the sample, the employer may be allowed to have one other person of the same sex as the applicant present when the sample is given. It is vital that you consult with an employment law attorney before instituting any drug/alcohol testing policy for your business. Federal and State LawThe major federal law governing the use of drugs and alcohol in the workplace is the Drug-Free Workplace Act of 1988. This Act basically states that any employer who receives federal grants or contracts must be drug-free, or it risks losing the federal funding. The Act does not, however, contain any provisions that specifically allow for workplace drug testing. Specific federal agencies or departments may also have drug-testing policies in place. For example, the Department of Transportation has regulations that require drug-testing of more than 8 million different employees, such as over-the-road truckers. Don’t Engage in Selective TestingAn employer may face legal difficulties if it chooses to test only certain applicants for a position. In other words, an employer cannot pick and chose (based upon educational experience, demeanor, looks, or any other characteristic) which applicants it will test for drugs or alcohol. The employer must treat all applicants for the same job in a similar manner. Most state statutes also limit the type of testing that may be performed, whether it be through urine, breath, blood, or hair. Note: Hair testing is the newest method of drug testing and can accurately test for drug use within the previous 90 days, according to its proponents. Urine testing, on the other hand, generally only provides accurate results for the previous five-day period. Don’t Drug Test Employees Without Their ConsentIf an employer tests an applicant in a covert manner, without the applicant’s knowledge or consent, the employer can face serious legal difficulties. For example, an employer may not pick up stray pieces of hair that an applicant inadvertently left on a chair during the interview and test them for drugs unless the applicant knows the employer is doing so. If an applicant or employee tests positive for drugs or alcohol, some state statutes allow for the employer to re-test that applicant or employee at the expense of the employee. Under many state laws, an employer is required to exercise discretion in reporting positive test results. For instance, the law might provide that only those individuals who are on a need-to-know-basis should be told of the positive result. The result should not, obviously, be posted on the lunchroom bulletin board. Things to Think AboutEmployers who plan on conducting drug testing should, before the first test is ordered, establish a written policy governing when the testing will take place and how it will be performed. Having this information in place may help resolve any questions that arise in the future as to whether a particular test should be conducted, or whether it was conducted properly. Business Lawyer Free ConsultationWhen you have a business law issue you need help with, call Ascent Law for your free consultation (801) 676-5506. We want to help you.
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ABOUTHi my name is Fiona Rikke and i am Divorce Lawyer at Midvale, UT. Archives
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