Drug testing and background checks are crucial tools employers use to ensure workplace safety and make informed hiring decisions. These practices help identify potential risks and verify candidate information, but they're subject to complex legal regulations.
Employers must navigate state and federal laws, balancing safety concerns with employee privacy rights. Developing clear policies, obtaining proper consent, and following fair procedures are essential to mitigate legal risks and maintain a compliant screening process.
Types of drug tests
Drug tests are used to detect the presence of illegal or prescription drugs in a person's system
Different types of drug tests have varying detection windows and accuracy rates
Urine tests
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Most common type of drug test used by employers
Detects drug use within the past few days to weeks, depending on the substance
Can be easily tampered with or diluted, leading to false negative results
Requires a private bathroom for sample collection (observed or unobserved)
Hair follicle tests
Analyzes a small sample of hair to detect drug use over a longer period (up to 90 days)
More difficult to tamper with compared to urine tests
Higher cost and longer processing time than other methods
May not detect very recent drug use (within the past few days)
Blood tests
Highly accurate but invasive and expensive method
Detects current intoxication or very recent drug use (within hours to a few days)
Requires a trained medical professional to collect the sample
Not commonly used by employers due to cost and invasiveness
Saliva tests
Collects a saliva sample using a swab or absorbent pad
Detects recent drug use (within hours to a few days)
Less invasive and easier to administer than blood or urine tests
May be less accurate than other methods for some substances
Useful for detecting current impairment or very recent drug use
Reasons for drug testing
Employers may conduct drug tests for various reasons related to safety, liability, and productivity
Drug testing policies should be clearly defined and consistently applied to all employees
Safety-sensitive positions
Certain jobs involve high-risk tasks or operating heavy machinery (transportation, construction, healthcare)
Drug testing helps ensure that employees in these roles are not impaired on the job
Reduces the risk of accidents, injuries, and fatalities caused by drug-related impairment
Workplace accidents
Drug tests may be conducted following a workplace accident or injury
Helps determine if drug use was a contributing factor to the incident
Can impact workers' compensation claims and liability for the employer
Reasonable suspicion
Employers may test an employee if there is of drug use based on observable signs and symptoms
Signs may include erratic behavior, slurred speech, bloodshot eyes, or the odor of drugs or alcohol
Supervisors should be trained to recognize and document signs of impairment
Random testing programs
Some employers implement random drug testing for all or a subset of employees
Helps deter drug use and identify employees with substance abuse issues
Must be conducted in a truly random manner without bias or discrimination
Commonly used in industries with high safety risks or regulated by federal agencies (DOT)
Legal considerations
Drug testing laws vary by state and industry, and employers must navigate a complex legal landscape
Balancing safety, liability, and is crucial when implementing drug testing policies
State laws on drug testing
Some states have specific laws regulating when and how employers can conduct drug tests
Restrictions may include requiring reasonable suspicion, limiting random testing, or mandating confirmatory tests
Employers must review and comply with applicable state laws in addition to federal regulations
Federal laws and regulations
Certain industries, such as transportation and aviation, are subject to federal drug testing regulations (DOT, FAA)
The (ADA) prohibits discrimination against individuals with disabilities, including those with a history of substance abuse who are currently in recovery
The (FMLA) may provide job-protected leave for employees seeking treatment for substance abuse disorders
Medical marijuana and drug testing
Many states have legalized medical marijuana, creating challenges for employers' drug testing policies
Some states prohibit employers from discriminating against employees who use medical marijuana off-duty and in compliance with state laws
Employers should review state laws and consider accommodations for employees with valid medical marijuana prescriptions
Disability discrimination and drug testing
The ADA protects individuals with disabilities from discrimination, including those with a history of substance abuse who are currently in recovery
Employers must provide reasonable accommodations for employees with substance abuse disorders, such as time off for treatment or modified job duties
Drug tests must be job-related and consistent with business necessity, and not used to screen out individuals with disabilities
Drug testing policies
Developing clear, comprehensive, and legally compliant drug testing policies is essential for employers
Policies should be consistently applied and communicated to all employees
Written policy requirements
Drug testing policies should be in writing and included in employee handbooks or other policy documents
Key components include the purpose of testing, types of tests used, substances tested for, and consequences of positive results
Policies should also address confidentiality, privacy, and the appeals process for positive tests
Communicating policies to employees
Employers must ensure that all employees are aware of the drug testing policy and have access to the written document
New hires should receive a copy of the policy and acknowledge receipt in writing
Regular training and reminders can help reinforce the policy and ensure ongoing compliance
Consequences of positive tests
Policies should clearly outline the consequences of a positive drug test, which may include disciplinary action, termination, or referral to a substance abuse treatment program
Employers should apply consequences consistently and in accordance with the written policy
Some states may require employers to offer rehabilitation or treatment options before terminating an employee for a positive test
Confidentiality of test results
Drug test results are considered confidential medical information and must be kept separate from general personnel files
Access to test results should be limited to those with a legitimate need to know, such as HR professionals or safety managers
Employers must ensure that test results are not disclosed to unauthorized individuals or used for discriminatory purposes
Background check basics
Background checks are a common tool used to verify information provided by job candidates and identify potential risks
Employers must comply with federal and state laws governing background checks, including obtaining consent and providing required disclosures
Types of background checks
Criminal history checks: Searches for felony and misdemeanor convictions, arrests, and pending charges
Employment verification: Confirms a candidate's employment history, including job titles, dates of employment, and reasons for leaving
Education verification: Verifies a candidate's educational background, including degrees earned and attendance dates
Credit checks: Reviews a candidate's credit history and financial standing (restricted in some states)
Motor vehicle records: Checks a candidate's driving history, including accidents, violations, and license status
Fair Credit Reporting Act (FCRA)
The FCRA is a federal law that regulates background checks conducted by third-party consumer reporting agencies (CRAs)
Employers must follow specific steps when using CRAs, including obtaining written consent, providing a standalone disclosure, and notifying candidates of adverse actions
The FCRA also requires CRAs to maintain accurate and up-to-date information and allows individuals to dispute inaccurate or incomplete records
Consent and disclosure requirements
Before conducting a background check through a CRA, employers must obtain written consent from the job candidate
A standalone disclosure document must be provided, informing the candidate that a background check will be conducted and may be used to make employment decisions
The consent and disclosure cannot be combined with other application materials or include extraneous information
Adverse action procedures
If an employer decides not to hire a candidate based on information in a background check, they must follow the FCRA's adverse action process
Pre-adverse action: The employer must provide the candidate with a copy of the background check report and a summary of their rights under the FCRA
Waiting period: The employer must allow a reasonable amount of time (typically 5-7 days) for the candidate to review and dispute any inaccurate information
Adverse action notice: If the employer proceeds with the adverse action, they must provide a final notice to the candidate, including the CRA's contact information and the candidate's right to obtain a free copy of the report
Criminal background checks
Criminal background checks are a common type of pre-employment screening, but their use is subject to various legal restrictions and best practices
Employers must balance the need to maintain a safe workplace with the rights of job candidates and the risk of discriminatory hiring practices
State and federal laws
Some states have laws limiting the use of criminal history information in hiring decisions, such as prohibiting inquiries about arrests without convictions or setting time limits on the age of convictions that can be considered
Federal guidance from the Equal Employment Opportunity Commission (EEOC) recommends that employers conduct and consider the nature and gravity of the offense, the time passed, and the relevance to the job
Ban-the-box legislation
Many states and local jurisdictions have enacted "ban-the-box" laws, which prohibit employers from inquiring about criminal history on initial job applications
These laws aim to provide fair hiring opportunities for individuals with criminal records by delaying background checks until later in the hiring process
Employers must review applicable ban-the-box laws and adjust their hiring practices accordingly
Arrest vs conviction records
Arrest records alone generally cannot be used to make employment decisions, as an arrest does not establish guilt
Conviction records may be considered, but employers should evaluate the relevance of the conviction to the specific job duties and conduct individualized assessments
Some states prohibit or limit the use of certain types of convictions, such as sealed or expunged records
Individualized assessments
The EEOC recommends that employers conduct individualized assessments when considering criminal history information
Factors to consider include the nature and gravity of the offense, the time passed since the offense or completion of the sentence, and the nature of the job sought
Individualized assessments help ensure that criminal history information is used in a job-related and consistent manner, reducing the risk of discrimination claims
Other background checks
In addition to criminal history checks, employers may conduct other types of background checks to verify information provided by job candidates and assess their suitability for the position
These checks are subject to various legal requirements and best practices
Employment verification
Employers may contact a candidate's previous employers to confirm their job titles, dates of employment, and reasons for leaving
Some states limit the information that former employers can disclose without the candidate's consent, such as performance evaluations or disciplinary actions
Employers should obtain consent from candidates before conducting employment verifications and ensure that the information obtained is job-related and consistent with business necessity
Education verification
Education verification confirms a candidate's educational background, including degrees earned, institutions attended, and dates of attendance
Employers should obtain consent from candidates before verifying their education and ensure that the information is relevant to the job requirements
Some positions may require specific degrees or certifications, making education verification a crucial part of the background check process
Credit checks
Credit checks review a candidate's credit history and financial standing, including credit scores, outstanding debts, and payment history
The use of credit checks is restricted in some states, and employers must comply with the FCRA's requirements for obtaining consent and providing disclosures
Credit checks should only be conducted when the information is job-related and consistent with business necessity, such as positions involving financial responsibilities or access to sensitive data
Motor vehicle records
Motor vehicle record checks review a candidate's driving history, including accidents, violations, and license status
These checks are commonly used for positions that require driving as part of the job duties, such as delivery drivers or sales representatives
Employers must obtain consent from candidates before conducting motor vehicle record checks and ensure that the information obtained is job-related and consistent with business necessity
Legal risks and best practices
Employers face various legal risks when conducting background checks and making hiring decisions based on the results
Developing compliant policies and following best practices can help mitigate these risks and ensure fair and non-discriminatory hiring practices
Discrimination claims
Employers must ensure that their use of background check information does not result in or disparate treatment of protected classes, such as race, national origin, or disability
Disparate impact occurs when a facially neutral policy or practice disproportionately affects a protected class, while disparate treatment involves intentional discrimination based on a protected characteristic
To avoid discrimination claims, employers should consistently apply background check policies, conduct individualized assessments, and ensure that hiring criteria are job-related and consistent with business necessity
Negligent hiring and retention
Employers have a legal duty to exercise reasonable care in hiring and retaining employees to ensure a safe workplace
Failure to conduct appropriate background checks or to act on information revealing potential risks can lead to negligent hiring or retention claims if an employee causes harm to others
To mitigate these risks, employers should conduct thorough background checks, investigate any red flags, and take appropriate action when necessary
Developing compliant policies
Employers should develop written background check policies that comply with all applicable federal, state, and local laws
Key components of a compliant policy include obtaining consent, providing required disclosures, following , and ensuring the confidentiality of background check information
Policies should be regularly reviewed and updated to reflect changes in legal requirements and best practices
Working with background check providers
Many employers choose to work with third-party background check providers (CRAs) to conduct screenings on their behalf
When selecting a CRA, employers should ensure that the provider complies with the FCRA and other applicable laws, maintains accurate and up-to-date information, and follows best practices for data security and privacy
Employers should also have a clear understanding of the services provided by the CRA, the turnaround time for results, and the process for disputing inaccurate or incomplete information