By Quenda Behler
Say you suspect that one of your employees may have a
substance-abuse problem. You don't think he's drinking, but
he's clumsy and glassy-eyed. Can you ask him to take a drug
test? The answer depends on which state you are in and how much
reason you have to suspect that he's using drugs. Maybe he just
has the flu.
But why, you ask, would there be any problem with requesting a
drug test? If he was drinking on the job site, you could fire
him on the spot — what's so different about drugs?
After all, drinking isn't even illegal.
The problem is that there are a lot of laws about drug use,
and some of them are conflicting. Because using illegal drugs
can be considered a medical condition as well as a crime, drug
users may be protected by federal antidiscrimination laws such
as the Americans with Disabilities Act (ADA).
Legally, alcohol use is a much simpler problem than drug use.
Most judges accept the idea that the average layman can tell
when someone is drinking. Finding an open bottle, smelling
liquor on a person's breath, or seeing someone stagger around
may be all the proof you need. Short of catching him in the
act, the only way to identify a drug taker is by testing.
Asking someone to take a drug test is like accusing him of a
crime. The request may conflict with his privacy rights, or you
may be asking him to incriminate himself.
Under ADA, a
recovering addict who is not currently taking drugs may be
considered disabled. If you fire him, you may find yourself in
court. But the moment he takes drugs again, he loses his
protected status under ADA. You can ask any employee to take a
drug test if you have reasonable grounds for suspicion that he
is taking illegal drugs.
An employee who is under the care of a medical professional
can sometimes legally take drugs such as methadone. If it's
part of his treatment, you may not be able to fire him for
State law. Some states allow
employers to test job applicants for drugs before they're
hired. Other states and many cities have enacted protective
legislation that restricts drug testing in the private
workplace, and some jurisdictions have banned random or blanket
testing of employees. In many cases, legislatures have also
established standards for the labs that do the testing.
Those laws give employees some measure of protection against
unfair and unreliable testing, However, even states that
restrict testing allow you to require drug tests during the
course of employment when there are reasonable grounds for
suspicion of illegal drug use.
If you have reason to believe an employee is using drugs, you
need to do everything the law allows to respond. If the
employee hurts himself, he is entitled to worker's comp, even
if the accident was caused by his drug use. If he hurts someone
else, such as a sub or homeowner, you could be sued for
negligence for not doing something about his drug
Inaccurate test results.
Another way you could be liable is if one of your employees
submits to a drug test and it results in a false positive. The
test says he's taking illegal drugs, but he isn't. This may
sound far-fetched, but it happens all the time. Many things can
cause false positives. Drug tests are sometimes fooled when the
subject is taking legal over-the-counter drugs such as
antihistamines. Some tests are more accurate than others. Most
people test urine samples because that's cheaper and less
invasive than more accurate tests that involve drawing blood or
clipping hair. Some labs are more accurate than others, too
— false positives are often the result of sloppy lab
You want to avoid false positives, because the courts don't
like it when you punish an innocent person for abusing drugs.
Drug residue stays in the body for a while, so a falsely
accused person might be able to be exonerated by going to a
second lab and taking another test. There's a chance that
person could prevail against you in a suit for defamation or
wrongful discharge. It might sound like that would be the lab's
problem, but you could be liable for picking a bad lab or an
unreliable test, or because your suspicion was not well
founded. This is true even in the states that allow random drug
So here is your rock and your hard place: If you don't check
for drugs when you suspect them, you could be sued by someone
your drug-addled employee injures; but if you do check, and
that employee is damaged by an inaccurate drug test result,
he could sue you.
I recommend drug testing when there is probable cause to
suspect drug use. I recommend a drug test after any serious
accident. And I strongly recommend that if you think you might
be requiring a drug test at some point, you state that in
advance in your employee handbook.
In the handbook. Your
employee handbook needs to be clear as to whether you're
talking about random testing, pre-employment testing, or
testing upon display of suspicious behavior — or some
combination of those. In the handbook, state what happens if a
drug test is positive. You may want to refer the employee to a
rehab program, or you may want to terminate the employee on the
spot. The language in your handbook should give you as much
flexibility as the law allows regarding treatment and
termination. If you do refer your employee to a treatment
program, you want to retain the ability to terminate his
employment if the program is not successful.
Finding a lab. You also need
to make advance plans for how to handle testing. You don't want
to flip through the phone book to find a drug testing lab. Ask
the local construction trade council or rehab center where to
get people tested. This is important, because if the employee
sues you for wrongful discharge, the first thing his lawyer
will do is attack your choice of labs. If the lab is wrong
— and they often are — you could be liable
for selecting the lab that produced the faulty result. You want
to be able to show that you did your best to find a competent
Subcontractors. Don't forget
to think about a drug policy for all those subs on your job
site. You can add a clause to your contract with your subs that
requires them and their employees to agree to your policies on
drug use. You might be able to make the subcontractor take a
drug test, but it's legally difficult to make his employees
take one. You might want to include a clause in the
subcontractor agreement that gives you the right to boot any of
his employees off the job without saying why, because without
being able to test, it's risky to accuse someone of being on
Don't try to write the drug policy or the various clauses in
the subcontractor agreement yourself. Get help from an
employment lawyer or a good human resources professional with
experience in the construction field.
Quenda Behler Storyhas practiced and taught law for over 25
years and is the author ofThe
Contractor's Plain-English Legal Guide(www.craftsman-books.com).