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To Test or Not to Test: The ADA and Pre-Employment Drug Tests

By: Martin Salcedo, Esq.
The Human Equation

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Today’s business professionals, well aware of the high costs associated with employee turnover, know that they can ill afford to make hiring mistakes, especially in a volatile business climate in which belt-tightening is the norm. Thus, organizations are pulling out all the stops to vet applicants properly, even as fewer dollars are allocated to recruiting and training new employees.

Verifying experience and educational credentials, as well as confirming employment histories and checking references, have been staples of the recruiting process. However, in light of some disturbing revelations about illicit drug use in the workplace, many employers demand that applicants submit to pre-employment drug tests. Considering the costs associated with substance abuse in the workplace, many professionals believe such increased scrutiny is justified.

The Occupational Safety & Health Administration found that of the 17.2 million illicit drug users aged 18 or older in 2005, 12.9 million (74.8 percent) were employed either full or part time. According to the Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration, employees who abuse drugs bring their problems with them to work in the form of lower productivity, increased absenteeism and turnover, increased health care costs, and a higher incidence of workplace theft and violence. Substance abusers are also more likely to be involved in a workplace accident and five times more likely to file workers’ compensation claims.

In light of such alarming statistics, it’s no surprise that organizations have implemented policies that require pre-employment drug tests of job applicants and that deny employment to any candidates whose test results come back positive. However, before instituting such policies, employers should be aware of how the Americans with Disabilities Act (ADA) views pre-employment drug tests.

The ADA, which prohibits private employers with 15 or more employees from discriminating against qualified individuals with disabilities, strictly limits an employer’s right to submit job applicants to medical examinations. In the pre-employment context, the ADA simply makes it unlawful for an employer to submit a job applicant to a medical examination. This prohibition against pre-employment medical examinations is intended to ensure that an applicant’s possible hidden disability, which may be revealed by a medical examination, is not considered before the employer evaluates the applicant’s non-medical qualifications.

The ADA’s prohibition against pre-employment medical examinations is relaxed a bit after an offer of employment has been made to the job applicant but prior to the commencement of employment duties. Once this so-called “conditional job offer” is made, the employer may submit the conditional employee to a medical examination, but only if this is done for all employees entering that job category.

So, given these limitations, how can requiring that a job applicant take a drug test prior to an offer of employment be considered legal under the ADA? First, a test to determine the illegal use of drugs is not considered a medical examination under the ADA. Thus, the limitations prohibiting pre-employment medical examinations do not apply. Second, an applicant who is currently engaged in the illegal use of drugs is not considered a qualified individual with a disability when the employer acts on the basis of such use. Since the ADA protects only qualified individuals with a disability, active users of illegal drugs are not entitled to the ADA’s protections. Accordingly, the pre-employment drug testing of job applicants is generally permissible under the ADA. (Although the issue is beyond the scope of this article, it should be noted that the ADA’s protections may, in some circumstances, extend to recovering drug addicts; employers need to be aware of these provisions if applicable to their workforce.)

However, although the ADA allows pre-employment drug testing, the law does not require it. The ADA specifically provides that “nothing in [the ADA] shall be construed to encourage, prohibit, or authorize the conducting of drug testing for the illegal use of drugs by job applicants…or making employment decisions based on such test results.”

This provision encapsulates the ADA’s somewhat neutral stance on pre-employment drug tests; the ADA neither prohibits nor requires them. The ADA also provides that it is not intended to supersede or otherwise modify any requirements regarding drug testing under other federal regulations, such as those covering the Department of Defense, the Nuclear Regulatory Commission, or the Department of Transportation.

Simply because the ADA does not specifically govern pre-employment drug testing of job applicants does not mean that employers electing to require tests are free from any regulation. In fact, in some jurisdictions and in some industries, the process of drug testing applicants and employees may be closely regulated. Therefore, employers must ensure that their drug testing procedures conform to all applicable federal, state, and local laws governing such testing (e.g., using licensed or certified drug testing facilities, ensuring confidentiality of results, complying with state laws governing employer mandated drug tests, etc.). Employers must also make sure that the decision to require that an applicant submit to a drug test is not discriminatory, and the best way to ensure this is to make all applicants, or at least all applicants for a specific position, take a drug test.

Although it is unlikely that any procedure will completely eliminate the possibility of hiring an employee with a substance abuse problem, administering drug tests to applicants is one tool that can help reduce the risk. Needless to say, there are many factors that must be considered before implementing such a policy, and employers must consult with a licensed attorney who is familiar with all applicable regulations governing a specific industry in a specific jurisdiction. However, such precautionary measures may pay off in the end by lowering turnover and increasing productivity.

© 2008 The Human Equation. All rights reserved. No reproduction, display or sale is permitted without the express written consent of the copyright owner.

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