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Conducting Background Checks & Drug Tests

Best Practices for Conducting Drug Tests

Alcohol or drug use can cause all kinds of problems for employers. If your employees are impaired at work, their performance and productivity may suffer or, worse, they may create safety or health hazards for themselves and others. Pre-employment drug testing is an important way to keep your employees and workplace safe.

While state laws regarding drug testing applicants and employees vary, federal laws are rather lenient for most private employers. The Substance Abuse and Mental Health Services Administration (SAMHSA) outlines standardized procedures federal agencies must follow when conducting drug tests. Even though most private employers are not required to follow SAMHSA’s guidelines, doing so can help you stay on the right side of the law. SAMHSA advises employers to:

Only conduct drug tests after a conditional offer. Some of the substances typically tested for in drug tests may be covered under legal usage due to certain medical conditions. Under the Americans with Disabilities Act (ADA), questions about an applicant’s health or medical condition are not permitted until after a conditional offer of employment has been made. If your drug tests are conducted before this, you may be inadvertently asking candidates about their health prior to when you’re legally allowed.
Give written notice of your drug testing policies. In the notice, make sure to include details about the purpose and nature of testing, including the type of testing used, the procedure followed and what substances are being tested for. Your policies should also cover any disciplinary policies or consequences of a positive test result or refusal to submit to testing.
Include a consent form. Whenever you give the applicant written notice of your policies, you should also include a consent form that applicants have received and read the policies and agree to them.
Outline what happens if the test comes back positive. Before conducting the test, let candidates know how positive test results will be confirmed (ideally by conducting a second test on the same sample) and what their options are. For example, you may give candidates a chance to respond to or explain the results, or you could allow them to challenge the results and request a second test.
Keep all results, whether positive or negative, confidential. Drug test results are considered personal health information and should be treated as such. Any results should only be shared with a limited circle of those who need to know, such as applicants, HR staff or hiring managers. These privacy policies should also be included in the written notice you give applicants.
Require candidates to sign release forms. A form that releases your company from any liability that arises out of the administration of the test or use of the results – such as hiring decisions – should be included in the paperwork you give to candidates.
Create and follow a chain of custody form. If you opt to conduct your own drug tests, make sure you use a chain of custody form to document the handling and storage of samples. These forms should trace the sample from the time it’s collected until the time it’s disposed of.
Pay for drug tests. Since drug tests cost time and money, many employers cover the cost of the test itself, and doing so has become a best practice. Some states have measures addressing this as well, so check your local laws to ensure you’re meeting requirements.

If a Candidate Fails a Drug Test

After writing and posting the job advertisement, after reviewing stacks of applications and cover letters, after conducting phone screens and multiple rounds of interviews, after checking references, you’ve finally found the one. It’s taken you weeks – or months – to get here. The final hurdle is the drug test – and it comes back positive. Now what?

If you used an outside service to conduct drug tests

If you’re using an outside service, it’s important to understand the procedures they already have in place for verifying positive results. Typically, drug testing facilities have a medical review officer (MRO) on staff to review any tests that come back positive. This individual gets in contact with the applicant to discuss the results and find out if there were any legal reasons for the positive result, whether medical or non-medical (certain foods or over-the-counter medicines can show up as various illegal substances), and compares that information against the results to determine if the amount of substance in the sample could have been caused by the stated explanation. If the explanation provided is plausible, the MRO will often report the results as negative since they’re negative for illegal drug use. If the explanation provided is not plausible or if there is no explanation for the result, a second test is done on the same sample and the results are taken from that test. Therefore, when you’re receiving a positive result from an outside service, it’s highly likely that the results have already been verified with the candidate.

Still, it’s a good practice to have someone at your company get in touch with the applicant and inform him or her of the drug test results. In fact, if the outside service you’re using is a consumer reporting agency, you must follow the same guidelines outlined in the Fair Credit Reporting Act (FCRA) if you intend to take any adverse action (i.e., pulling the job offer) based on the results of the test. This involves providing applicants with a copy of the report and a summary of their rights under the FCRA before taking any adverse actions.

Even if the service you use isn’t a consumer reporting agency, you may want to give candidates a chance to offer an explanation or submit to a second drug test, based on the type of drug or level detected. For example, if an applicant recently took a trip to a location where a substance is legal and his or her drug test came back with trace amounts of that substance in the sample, the results may not be indicative of regular usage, which may or may not factor into any hiring decisions.

If you conduct your own drug tests

The first thing to do is to conduct a second test, ideally with the same sample. (When drug testing, splitting samples is common practice since substances tend to leave the body quickly and therefore may not register in a second sample.) While rare, false positives do happen, and a second testing doubles your chances of getting an accurate result.

If the second test comes back positive, inform candidates of the test results and allow them a chance to reply. Again, there are many legal substances that can register as illegal substances on drug tests, including certain foods, drinks or over-the-counter cold medicines. Or the substance may have been consumed in an area where it’s legal, which, while possibly being a poor decision, wouldn’t necessarily indicate a habitual user or danger to your company.

Additionally, many substances tested for in drug screenings show up in prescription medicines. If a candidate has a prescription for any of these drugs, it could qualify as legal usage be covered by the ADA. Under the ADA, prescription drug use to treat a disability or other medical condition is protected as long as the applicant can perform the essential job functions, either with or without reasonable accommodations.

When asking applicants about their test results, it’s important to focus on the results and ask only about the substances found, not any specific medication. Never ask candidates to provide a list of all medications they’ve been prescribed or why they’ve been prescribed a particular drug. As long as the applicant can produce a legal, valid prescription, you can verify that the drug usage is legal while still protecting confidential medical information.

Finally, keep in mind that laws related to drug testing vary widely based on your location and industry. Before taking any actions with candidates who fail a drug test, make sure you know your legal requirements.

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