Views and Laws are Changing on Workplace Drug Testing

By Mickey Matran / December 18, 2014 / Uncategorized No Comments

As laws governing marijuana possession and use change, so are people’s views — and even some laws — on workplace drug testing. And it’s not just medical marijuana, marijuana decriminalization and marijuana legalization that make drug testing a sticky subject for employers. For instance, drug testing laws in other countries may differ from those in the U.S., so companies with global operations need to consider that in their drug testing policies. Also, employers need to know precisely when to do a post-accident drug test in order to avoid a lawsuit.

This week I’ve been reading about a variety of workplace drug testing issues and am sharing these articles to help you better understand them.

U.S. Drug-Testing Rules Do Not Translate Overseas. SHRM: “Many U.S.-based employers perform pre-employment, post-accident or random drug testing. With some exceptions, they are generally permitted wide latitude in deciding when to conduct such tests. But the U.S. attitude toward drug testing does not necessarily translate to other countries, where there may be different attitudes toward employee privacy, in particular. U.S.-based employers can run into trouble when attempting to impose those same testing requirements on a foreign division or subsidiary.”

Council Passes Legislation To Ban Pre-Employment Marijuana Testing. DCist: “The D.C. Council unanimously passed temporary legislation yesterday that will prohibit an employer from drug-testing potential employees for marijuana before a conditional job offer has been made. The bill, the ‘Prohibition of Pre-Employment Marijuana Testing Emergency Act of 2014’ was introduced by Councilmember Vincent Orange (D-At Large) in March of this year, and explicitly states that an employer cannot test a potential employee for marijuana use until after an offer for employment has been made. After an employee has been hired, however, they ‘must still adhere to the workplace policies set forth by their employer.’”

Case Study: Fresno County Jury Awards $1 Million for Improper Employee Drug Test. Sutton Hague Law Corporation: “A Fresno County jury recently awarded $1,035,050 to a former employee of Children’s Hospital who was fired after failing a post-accident drug test. The plaintiff was a Children’s Hospital employee of 18 ½ years who worked as a security guard. He was awarded almost $400,000 in economic loss and $650,000 for emotional distress. Immediately after an on-the-job accident, Plaintiff was treated by medical personnel and given a painkiller. The next day, Plaintiff was told he must take a drug test. The test was positive for hydrocodone.”

Can I Be Fired for Refusing to Take a Drug Test? NOLO: “The legality of drug testing depends on state law. Generally speaking, private employers are not required to test employees for drugs or alcohol. However, state laws typically allow employers to drug test employees, at least in some situations. About half of the states have laws that directly address drug tests. In general, employers may require employees to submit to drug testing under certain circumstances. However, each state law varies in the details, such as how much notice an employer must give if it plans to start a drug testing program, the procedures the employer must follow in taking and testing samples, and the rights of employees who test positive.”

Employee’s Admission of Off-Duty Marijuana Use Insufficient to Deny Unemployment Benefits. Drug & Alcohol Testing Law Blog Advisor: “An employee’s admission of off-duty marijuana use was not “misconduct” sufficient to deny unemployment benefits, even if it may have been a sufficient reason for his discharge, according to an Illinois appellate court.  Eastham v. The Housing Authority of Jefferson County, No. 09-MR-57 (Ill. App. Ct. 5th Dist. Dec. 2, 2014)….After taking the test, Eastham informed his supervisor that he had smoked marijuana on two occasions while on a vacation a few weeks earlier.  Eastham believed he would not pass the drug test.  As a result, Eastham was terminated for violating the Housing Authority’s policy.  Following his discharge, the result of the drug test came back negative.”

Want more information about crafting fair and legal drug testing policies and procedures for your organization? Contact us to learn how we can help.

HR Solutions is a human resources outsourcing firm based in Baton Rouge, Louisiana. We eliminate human resources headaches for businesses with 10 to 1,000 employees by handling their payroll, employee benefits, regulatory compliance and other staffing needs. Contact us to learn how we can streamline your company’s human resources function to save money and reduce risk.

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