Can I administer drug tests?

October 17, 2014

Q We just hired a 17-year-old photographer to cover local sports. We used to require drug tests, and we’ve kind of gotten away from it. But we’re thinking we probably ought to make him sign a consent form. What do you think?
A There is a lot more to this question than you may think. This is one where you should consult your local attorney. If you don’t have local counsel, talk to an attorney in your state labor department.
State laws vary widely in whether they permit employers to administer drug tests and in the requirements for laboratories that perform the drug analysis. Here are some things to consider:
• You definitely should not administer the tests selectively. If you are going to test, you should test everyone similarly situated. In other words, once you begin again, you should keep it up for whatever category of people you think it necessary.
• As you select the category of those you wish to test, you might select, for example, people who will be driving in the course of employment, or every hire after September 2014. By all means, do not select groups by age, race, sex or any other protected class.
• Be careful not to put the applicant in a position of being embarrassed in the act of providing the sample. That could give rise to privacy concerns.
• Some states restrict drug testing to applicants only in conjunction with a job offer that is made on condition of a clean test. Check on that before you begin.
• Applicants may have a legal right to see the results of the test.
• The Americans with Disabilities Act protects people from job discrimination. If a drug were to show up in the test, you would need to be sure it is not something required in treatment of a disability.
• If you are in a state that permits medical marijuana, your state law may prohibit you from eliminating applicants who use marijuana for that reason. Also, the ADA may come into play in that case.
• Defamation can be a concern if your management staff gossip about the results of a test. Keep the information closely held by one or two people and train them in the need for discretion.
• Most states do not require consent forms, though the laboratory you use may. Some do require notice of your intent to test, although you could argue that once you take a urine sample, the applicants are pretty well on notice. Still, having applicants sign a form that they have agreed to take the test and that a positive result is grounds for being eliminated from consideration is a measure of protection for you.
• In your case, you have one final hoop to jump through. Unless you are in a state where the age of majority is under 18, a legal consent form signed by your 17-year old is not a legal agreement. A parent will have to sign for him.

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