What is a Fair & Reasonable Drug Testing Policy? Part I

What is a Fair & Reasonable Drug Testing Policy? Part I

I recently had a client ask me a question about a drug and alcohol testing policy. This particular client actually has a very specific need. They have employees who are driving vehicles on public roads. They have employees who are going to be in people’s homes performing maintenance work. So, they do have a legitimate need and concern. Chances are, they have an insurance company who is telling them that if they want a lower premium, they have to have a drug testing policy.

The question is, what is a fair and reasonable drug testing policy?

I think the first thing that people ask is whether they can drug test potential employees before they are hired. The answer is yes: you can conduct a drug screening on people before you hire them. The wisest course of action to take is to present that requirement at the time that you make the offer to the candidate, stating that the hiring is contingent upon a successful passing of a drug screening.

The next question is whether you can conduct random drug screenings. The answer to that is yes, if they are truly random. There are many ways that you can have a random drug screening. You can pick a number from a hat and say that anyone whose social security number ends in that digit needs to have a drug screening.

One of the questions that often comes up is whether a company should screen all of their employees, or only the ones who are driving company vehicles. That is a difficult question to ask. It can be viewed as a discriminatory policy to only require one category of employees. However, there is a legitimate business reason for only testing those employees who are driving vehicles or who are in customers’ homes. There is a legitimate business purpose behind that, and there is an insurance purpose behind it, so it may stand up. But, I wouldn’t risk it, so if you are going to have random testing policy, including all employees is probably a safer course of action.

There are a couple of other times in which a mandatory drug screening can be required of employees. The first and most obvious is if there is an accident in a company vehicle. You can require an employee to obtain drug testing to verify that the employee was not under the influence of alcohol or drugs at the time of the accident. You could also have a drug screening if an employee appears impaired according to multiple people. Signs of impairment might be slurred speech, glossy eyes, lethargic behavior, or any visibly noticeable signs of drug use or being under the influence.