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March 03. 2013 4:19PM

Know the Law: Steps to take before requiring a drug test


CHARLA BIZIOS STEVENS 

Q. I own a New Hampshire business and am concerned a few of my employees may be impaired by alcohol or drugs at work. I am worried about both their safety and my liability and wonder if adopting a drug testing policy would help. How would I go about initiating that?

A. In light of recent publicity about the extent of substance abuse and the effect on New Hampshire workplaces it is appropriate for you to consider taking proactive measures. Substance abuse is a real safety concern as well as a cause of millions of dollars in lost productivity. Before drug testing, however, there are a number of preliminary matters you should address.

First, is your business is in an industry which either requires or has standards for drug testing? For example, drivers with commercial licenses may be covered by Department of Transportation regulations which specifically address drug and other medical testing. You should consult those regulations for guidance.

Assuming no specific requirements apply to your company, be aware that there are generally three types of drug testing: 1) pre-employment, 2) reasonable suspicion or post-accident/injury, and 3) random. Drug testing is a medical test and must be conducted consistent with the requirements of the Americans with Disabilities Act (ADA).

Pre-Employment. After an offer of employment has been made, the employer may require a drug test and may condition the offer on the results, provided all entering employees are subject to the same examination, and testing is administered to all applicants within the job category.

Post Incident/Reasonable Suspicion. Employers sometimes implement policies requiring drug tests after an employee sustains a work-related injury or causes property damage or injury to others. While the ADA does not prohibit testing for illegal drugs, such testing can raise claims of invasion of privacy. Testing should be implemented pursuant to a written policy describing the program. What constitutes reasonable suspicion should be carefully defined along with the guidelines for the types of injury/damage which would trigger a drug test.

Random. Random drug testing is the least favored option and the most likely to result in a claim of invasion of privacy or discrimination. This type of testing should be undertaken carefully and with due consideration of the pros and cons.

Given that drug and alcohol testing policies are complex and still subject to privacy and ADA concerns, employees should develop their policies with clear objectives in mind and have them reviewed by legal counsel.

Know the Law is a bi-weekly column sponsored by The McLane Law Firm.

We invite your questions of business law. Questions and ideas for future columns should be addressed to: Know the Law, The McLane Law Firm, P.O. Box 888, Manchester, NH 03101 or emailed to knowthelaw@mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.


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