Drug testing and backgroun
d checks in the workplace are standard tools for employers to manage their company environment and ensure employees follow a company code of conduct. But implementing a drug testing policy isn’t as simple as it might sound. Many states have laws surrounding employers’ rights to drug test their employees.
To avoid facing legal trouble or potential lawsuits, employers are responsible for implementing their drug testing policies equitably and legally. Here’s what every Pennsylvania-based employer needs to know.
What Are the Laws for Drug Testing in Pennsylvania?
Many states have laws restricting employer drug testing policies, but Pennsylvania doesn’t. That means private employers can drug test their employees as long as they don’t violate other legal protections while doing so. It is strongly advisable that employers implement a drug testing policy and wait 90 days after the communication of said policy before administering random, reasonable suspicion and post-accident drug testing.
Under the Americans with Disabilities Act (ADA), employers have the right to require employees to undergo drug tests. They also have the right to prohibit illegal drug and alcohol use in the workplace.
What Employers Can’t Do
Employers can’t use drug testing to discriminate against protected groups specifically. They can’t single out employees for testing based on race, gender, age, or other protected classifications. And while drug testing, employers can’t violate their employees’ right to privacy (such as requiring employees to disrobe or provide a urine sample in front of other people).
Types of Drug Testing Available to Employers
Pre-Employment Testing
Employers can require drug tests as part of the pre-employment hiring process, wherein a job offer is contingent on passing the drug test. Pennsylvania doesn’t have laws limiting this, so employers are free to act as they see fit (as long as they comply with local, state, and federal law).
Employers can administer pre-employment drug testing without having an established drug testing policy. However, employers who use pre-employment testing must be consistent in their practices. They can’t selectively test some applicants for particular jobs and not test others.
Random Testing
Employers may randomly test all or a sample of employees periodically. However, their selections must be truly random. This serves as a spot test to enforce the company’s drug use policies without the expense and hassle of testing every employee regularly.
Reasonable-Suspicion Testing
Sometimes supervisors have reason to believe a specific employee is using drugs. This can include:
- Erratic or abnormal behavior
- Physical evidence of possession or use of illegal substances
- Difficulty or inability to complete routine job functions due to symptoms of intoxication
- Disorientation or confusion on the job
Because reasonable-suspicion testing is discretionary, employers need to be sensitive and careful with how they handle this. Employers are responsible for creating and administering their guidelines and policies, then following them legally and equitably.
Return-to-Duty Testing
A return-to-duty drug test is a one-time, announced drug test that an employer can ask for when
- an employee has previously tested positive for drug or substance use
- has completed the required treatment for the substance abuse
- and is ready to return to the workplace.
The Pennsylvania Drug Testing Act (Act) does not require employers to have a return-to-duty drug testing program. If an employer chooses to implement a return-to-duty drug testing program, it must follow the Act and other applicable laws. If more than one test is required for returning employees to duty, the employer must set forth how often and when the employee will be re-tested.
Post-Accident Testing
Post-accident testing can help employers handle workplace injuries or other safety concerns effectively. Remember that employers can’t legally use incident testing to punish employees for reporting workplace injuries or illnesses. Instead, a policy can call for immediate drug testing whenever an accident occurs in the workplace or traveling on a work-related business. The intention of post-accident testing should be to promote safety and health in the workplace.
For more information or to request a quote, reach out to First Contact HR today.