Drug abuse can be a costly problem for employers. According to the National Safety Council, absenteeism, workplace injuries, workplace violence, and workers’ compensation claims are all more common among employees who abuse prescription drugs. However, drug testing is also a compliance minefield, subject to a host of laws and regulations. Here are the most pertinent laws to know.
Title VII of the Civil Rights Act of 1964
Title VII prohibits employment discrimination on the basis of identifying factors like sex, race, color, religion, age, and national origin. Any organizational policy that is targeted toward a particular group defined by a prohibited basis may be vulnerable to a discrimination claim. In other words, if you single out a specific group – younger workers, racial minorities, a specific gender – you are likely violating Title VII.
The Americans with Disabilities Act (ADA)
Beware of violating equal opportunity regulations, or protections under the Americans with Disabilities Act (ADA) that cover recovered alcoholics, drug addicts, and people taking medication for disabilities. Marijuana may pose a particular challenge here. It’s part of the “basic five” tests (which look for amphetamines, cocaine, marijuana, opiates and PCP), but it’s also approved for medical and sometimes recreational use in some states or municipalities, even as it remains illegal on a federal level. Confer with your legal advisors for more information.
Expanded tests may also test for prescription and more unusual drugs. With expanded testing, employers will have to assess each result individually to determine if the drug is, for example, being used to treat a disability protected under the ADA.
Occupational Safety and Health Administration (OSHA) regulations
There’s an important caveat if you drug test after workplace injuries or illnesses. OSHA is concerned that drug testing may be applied in a retaliatory manner that discourages workplace safety reporting: it has ruled that “OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.” Such drug testing is allowed but OSHA requires that there be a “reasonable possibility” that drug use contributed to the injury or illness. Otherwise, such drug testing could result in an OSHA citation.
Health Insurance Portability and Accountability Act (HIPAA)
HIPAA is a regulation designed to protect personal health information, and drug testing results may be included. Employees must sign a HIPAA release or waiver before drug testing. Drug tests that reveal prescription medications may also count as private medical information, which means their confidentiality must be protected under HIPAA.
CoAdvantage, one of the nation’s largest Professional Employer Organizations (PEOs), helps small to mid-sized companies with HR administration, benefits, payroll, and compliance. To learn more about our ability to create a strategic HR function in your business that drives business growth potential, contact us today.