|US Employment Drug Testing in US is on the rise since drug abusing employees cost the employer dearly.
Drug and alcohol testing on workers is legal with growing perception that it does not unreasonably encroach into privacy rights of the employee, when performed under procedural checks and balances. Such checks and balances include adoption of a comprehensive written drug testing policy, periodically apprising employees of the policy, reducing incidence of errors in tests and treating test results confidentially to avoid improper dissemination. The results of such employee drug testing may be used as a basis for disciplinary action. The employer need not put up with any employee who poses a direct threat to the health and safety of himself including others.
In more than half of the states or jurisdictions, state laws regulate drug or alcohol testing. In those states, any drug or alcohol testing program must strictly comply with procedural safeguards laid down in the concerned state law. In high risk or safety sensitive industries, drug and alcohol testing is mandatory under many state laws.
In case of pre employment drug, test applicants are informed in advance that they must pass the test even to be considered for the job. However, the potential employer must handle the test results with care and caution. Leakage or unwarranted disclosure of the test results to third parties can be very embarrassing and humiliating to the candidate and may render such employer liable in huge damages to the aggrieved job applicant. In case a candidate is refused employment on the basis of erroneous test results, the employer is responsible to make good the loss to the injured.
Some state laws, however, explicitly require that before any drug or alcohol test, a conditional job offer be given to the candidate dependent on negative test results.
Nevertheless, in case any employer with not less than 15 employees decides to go ahead with drug test, it is advisable to hand over a conditional offer letter for the position to the candidate before the test. This is because as a part of the test, the examinee is asked regarding his use of prescription drugs that could give a false positive reading. Asking about the use of prescription drugs without a preliminary job offer even in good faith is likely to be misunderstood as attempts to eliminate a candidate on the ground of health based disability. This may be taken as contravention of the provisions of the Americans with Disabilities Act (ADA), a federal law to protect people with disabilities from discrimination.