You have a drug-free workplace policy in place to provide a safe workplace for employees, discouraging alcohol and drug abuse and encouraging treatment, recovery and the return to work of those employees with such abuse problems. Yet, actually implementing a random drug test can feel fraught with legal risks. There are privacy laws and HIPAA rules which protects employees’ private medical records - not to mention, impromptu drug testing can sometimes be construed as inadvertent discrimination.
Drug testing is allowed in the workplace under the Americans with Disabilities Act (ADA) because the ADA does not consider drug abuse a disability. However, employers do need to work within the laws that the state and federal government has put in place to protect the workplace and its employees. Learn more about the different regulations below:
Many federal employees – including those in executive agencies, the uniformed services, and federal contractors – are required to follow the drug testing guidelines mandated by the Drug-Free Workplace Act of 1988. Per the act, federal contractors and grantees must follow the regulations put in place by the Substance Abuse and Mental Health Services Administration (SAMHSA).
SAMHSA’s rules include:
Preparing and distributing a formal drug-free workplace policy statement.
Establishing a drug-free awareness program.
Ensuring that all employees working on the federal contract understand their personal reporting obligations.
Notify the federal contracting agency of any covered violation.
Take direct action against an employee convicted of a workplace drug violation.
Maintain an ongoing good faith effort to meet all the requirements of the Drug-Free Workplace Act throughout the life of the contract.
Unfortunately, for private sector companies, there is no one-size-fits-all solution for employers to understand how, when, why and where they are allowed to test employees and candidates. Each state has its own set of laws dictating how, when, where and why employees can be drug tested. Some employers make the mistake of assuming that the law of the state they are headquartered in is the only law that applies. For multi-state employers, it is necessary to comply with the laws of each state in which the company operates.
Generally, a well-written, well-researched drug testing policy can cover many of the legal requirements for each applicable state law. However, it is important to learn about the specific regulations that take place in your state of business and incorporate them into your policy. You can check out an overview of each state’s regulations here.
Here are a few Iowa-specific laws:
It is only legal to drug test applicants as part of a pre-employment physical examination if the applicant is informed orally at the time of application that a drug test is required, and if advertisements and application forms for the job carry notice of drug tests.
Drug testing of employees is authorized when there is probable cause to suspect substance abuse and the employee holds a job in which impairment would pose a danger, or during an annual employee physical exam with the employee given 30 days’ notice.
Random testing is permitted as long as the procedure is followed using a computer-based random number generator that matches the employee’s social security number or payroll identification number (selected from the entire employee pool).
Substance abuse evaluation and the opportunity for treatment is required for the first positive test result. Discipline or discharge authorization is allowed for subsequent positive results or for failure to complete treatment.
Test subjects have the opportunity to explain or rebut positive findings and to request confirmation through retesting.
The test results remain confidential and records of positive tests must be removed from their personnel file when the employee terminates if a treatment program was successfully completed.
When creating or altering your drug-free workplace policy, always consult an employment attorney to make sure you’ve covered your bases. Also, review SAMHSA’s 10 steps for avoiding legal problems.
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