Why a 3rd Party Protects You from Discrimination & Unfair Practices in the Workplace
Random drug testing can be fraught with difficulties. There is no federal law that prohibits random drug testing. In fact, some laws, such as the Federal Motor Carrier Act, may require random drug testing for drivers of commercial vehicles. There are, however, many states where random drug testing may be an invasion of privacy under tort principles. In some states, case law provides that random drug testing may only be conducted where required by statute or where a person works in a “safety-sensitive” position.
A 3rd party (TPA) can help you reduce risk of being non-compliant by state and federal laws, reduce the chance of discrimination and help keep your company out of legal issues. Let us take a deeper look in how a third-party administrator can help your company.
The most common risk that employers face is discrimination. One such example is how individuals are selected in a random drug testing program. If an employee feels that they are being singled out too frequently for drug testing, they may make a claim of discrimination. Therefore, employers must develop a truly random selection process to help mitigate the risk of discrimination claims.
Many employers use a computer program to randomize the selection of employees who will be tested. Others use less technologically sophisticated methods of selecting test subjects. Employers need to be careful with whatever method they utilize anytime they are setting up the pool to be tested or are setting up the selection process that they cannot be accused of manipulating the process to target certain individuals.
Inconsistent application. Another way that drug testing could be discriminatory is if the policy is not implemented consistently. According to the Benchmarking Report, only 22 percent of respondents conduct drug testing on contingent workers, and they do not randomly test these workers. For employers with a large contingent workforce, this oversight could create substantial risks.
For example, if applicants of a certain race or national origin are tested as a condition of employment but others applying for the same position are not, then that would be a discriminatory application of an otherwise legal drug testing policy. Note: it is legal to require drug testing for some positions and not for others, such as those with a safety concern.
Inconsistent application can be a factor on the job as well, not just during the hiring process. For example, a policy that requires a drug test any time an employee is involved in an accident but is only enforced for some employees and not others would be potentially discriminatory.
Disability discrimination. Since some disabilities require medication, this medication may show up in drug test results. If the positive result on the test is from a prescription medication (assuming it is being taken in a way consistent with how it was legally prescribed), then it may be discriminatory to hold that against the applicant. Be sure to know when exceptions due to disability are appropriate.
Addiction as a disability. The Americans with Disabilities Act (ADA) protects disabled individuals from discrimination if they’re qualified to do the job—and addiction can be considered a disability in some cases. In particular, those who have recently recovered from drug or alcohol addiction may be protected if they’re now qualified and no longer abusing drugs or alcohol—and employers need to be aware of this. However, this protection does not extend to those who are currently using (or abusing) drugs in a way that is against company policy.
Be Aware of Drug and Alcohol Testing Laws:
In addition to discrimination claims, drug testing regulations vary at the state and local levels. They also vary by industry. Some states have very specific laws as to what substances can be tested and what notice or appeal process must be provided to an employee of a positive test. As mentioned at the beginning of this article, there are many states where random drug testing may be an invasion of privacy under tort principles. In some states, case law provides that random drug testing may only be conducted where required by statute or where a person works in a “safety-sensitive” position. Some municipalities, such as San Francisco, have local laws that restrict random testing.
Companies also need to be aware of changing laws that might affect their drug testing policies. For example, currently 24 states plus the District of Columbia allow some form of medical marijuana use and several more states have pending legislation. However, the federal Controlled Substances Act still classifies marijuana as an illegal schedule one drug. This conflict between state and federal laws puts employers in a tough position. Employers should consider outlining a specific policy to address medical marijuana in their drug testing policy.
Some employers may elect a zero-tolerance drug-free workplace policy (some states don’t allow this), excluding even card-carrying medical marijuana users. Employers that do not have federal or industry regulations, and are operating in states that allow medical marijuana usage, may choose to create a tailored policy that allows medical marijuana usage for low risk jobs, but bans the substance for high-risk positions.
Let CleanFleet be your Drug Testing Industry Expert
CleanFleet Drug and Alcohol Testing Program Management services are committed to assisting our clients increase profitability through testing for safety in the workplace while managing the costs. There are many benefits to using a TPA like CleanFleet:
- CleanFleet has experience in Drug and Alcohol testing as they represent multiple clients
- CleanFleet has established best practices for managing a drug/alcohol program.
- CleanFleet can help you maintain compliance when you have multiple regulations to adhere to
- CleanFleet is an impartial 3rd party
CleanFleet can work with companies and agencies with existing programs to seamlessly bring program management, compliance and costs under control. We can also help set-up a new policy and testing program customized for your needs. Call the experts today at 503-479-6082.
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