Employers want to hire the best possible candidates for their open positions. However, evaluating an applicant based solely on his or her resume and interview might not reveal important information about the applicant’s background or lifestyle.
To help ensure that the candidates you hire are suited for your company, you might complete pre-employment background checks. Another important tool you might want to consider is a pre-employment drug test.
Pre-employment drug screening and random drug tests can help employers to save money and protect workplace safety. Employee drug and alcohol abuse result in lost productivity, increased absenteeism, higher health care costs, and workplace accidents.
At iprospectcheck, we offer comprehensive clinical services for employers that require drug tests, including DOT drug panels. Through our extensive lab network, we can provide fast results to our clients to speed the hiring process.
We have written this overview of pre-employment drug screening to provide you with more information about what you need to know about implementing a testing program at your company.
What is Pre-Employment Drug Testing?
Companies use pre-employment drug tests to determine whether prospective employees abuse illegal drugs or prescription medications. Employers might also use drug tests for employees on a random basis or after they return to work following absences or injuries.
Many employers ask prospective employees to complete pre-employment drug tests, making their job offers contingent on passing the drug-screens.
Typically, pre-employment drug tests check for the applicants’ past use of the following substances:
- Amphetamines, including methamphetamines
Drug screens may be performed through urine, saliva, blood, or sweat tests, and employers can request tests that screen for other substances in addition to the five listed above.
The testing process might include the following three phases:
- Collection and initial screen to determine the absence or presence of detectable drugs
- Confirmation screen if an initial screen returned a positive result with a review performed by a medical review officer
- Results provided for the drugs selected to the job applicant and employer within one to three days
Why is Drug Screening Important?
Drug screening is an important way to protect workplace safety, including pre-employment drug tests, random tests of employees, and reasonable suspicion or post-accident drug screens. Illicit drug use is a prevalent problem in the U.S.
According to the 2019 National Survey on Drug Use and Health from the Substance Abuse and Mental Health Services Administration, more than 57 million Americans ages 12 and older admitted using illicit drugs within the past year, and nearly 36 million admitted using within the past month.
The National Institute on Drug Abuse reports that employees who abuse substances are likelier to miss work more often, be late to work, frequently change jobs, be involved in workplace accidents in which others are harmed, and file more workers’ comp claims.
Pre-employment drug testing and routine screenings of employees are critical for workplace safety and can help employers combat high turnover rates, boost employee morale, and save costs.
In certain industries, the importance of pre-employment and routine drug screening for applicants and employees is obvious. For example, transportation companies that hire truck drivers, taxi drivers, and bus drivers should include drug screening as a regular part of their screening processes.
The transportation industry is also subject to strict regulations that mandate pre-employment DOT drug screens and random tests of drivers. Other industries, including construction and health care, also should consider pre-employment drug screens because of potential safety issues that could otherwise occur.
Pre-employment drug screens are a good idea for employers in many different industries because of the reduction in costs and potential liability issues that could otherwise arise.
The following statistics demonstrate why it is important for employers to take steps to achieve drug-free workplaces:
- The National Safety Council reports that employees with substance use disorders miss an average of 24.6 days annually from work each year, excluding vacations and holidays.
- The U.S. Bureau of Labor Statistics reports that 40% of workers with substance abuse disorders report having more than one employer in the previous year as compared to 22% of workers without substance use disorders.
- The National Safety Council reports that 75% of employers have been directly impacted by opioid abuse.
- Occupational Health & Safety reports that 65% of workplace accidents and up to 50% of workers’ compensation claims are caused by substance abuse.
What are the Most Common Drug Test Methods for Employment?
In U.S. workplaces, employers that conduct pre-employment drug screening do so with urine tests, hair tests, blood tests, or saliva tests.
Urine tests are the most common type of pre-employment drug test used by employers in the U.S. Typically, an employer will extend a conditional job offer to a prospective employee that is contingent on the applicant passing the drug screening.
The applicant will be asked to provide a urine sample, which will then undergo an initial screen. If the initial screen indicates the presence of a drug, a confirmation screen will be conducted before the results are provided to the employer.
Urine tests may also be used in random testing programs for existing employees and when employers have reasonable suspicion that an employee might be using illegal drugs.
Urine tests tell employers whether an employee has recently used drugs. For employers that conduct drug screens under federal mandate, urinalysis is the only approved method and is often chosen by both non-regulated and regulated employers.
Hair tests have a long detection span and can detect drug use from up to three months before the testing date. Hair testing only detects past drug use and will not return results for alcohol.
During a hair test, a lab technician collects 100 strands of an employee’s or applicant’s hair by cutting the sample close to the scalp. If the person has used drugs during the detection window, the test will reveal a positive result.
Some employers use blood drug tests to screen applicants or employees for illegal drug or alcohol use. A sample of blood is drawn by a licensed phlebotomist and is then sent to a lab for testing.
The results will reveal the levels and types of drugs or alcohol in the employee’s or applicant’s blood at the time that the sample was taken. However, since this is very invasive, it is not used by most employers.
Saliva testing is used by some employers since the applicants or employees can be observed throughout the collection process, making it difficult for the applicants or employees to dilute the results or adulterate them. Saliva can also be collected on-site at the workplace, which helps to reduce time and costs.
Saliva tests detect recent use within a few hours up to three days. A swab is used to collect the sample from inside of the applicant’s or employee’s mouth.
Breath Alcohol Tests
Breath alcohol tests may be used when an employer suspects an employee may be impaired by alcohol on the job. This type of test is normally performed using a breathalyzer machine and shows the concentration of alcohol in the employee’s system at the time of the test.
What Does a Pre-Employment Drug Screen Test For?
Most employers ask for the following five substances to be screened on a pre-employment drug test:
Some employers also request screens that test for additional substances. Blood or breath tests can be used to test for recent use of alcohol and might be requested after an accident or when an employee exhibits signs of alcohol impairment on the job.
Pre-Employment Drug Test Laws 2021: A Complete Overview
Other than in federally-regulated safety-sensitive industries, including nuclear energy, transportation, and military contractors, states are largely in control of laws governing pre-employment drug testing.
While these laws vary from state to state, most states authorize employers to conduct pre-employment drug tests as long as the tests comply with the state regulations. Some states also require employers to give applicants notice that drug testing will be required in their job advertisements.
Even in states that allow pre-employment drug testing, there are several areas in which employers need to take care to avoid violating other federal or state laws to prevent potential liability claims.
Federal and State Discrimination Laws
Title VII of the Civil Rights Act of 1964 and state anti-discrimination laws prohibit workplace discrimination based on the protected characteristics of certain groups of applicants or employees.
If you only test certain applicants based on their gender, age, race, color, national origin, sexual orientation, etc., you could face a discrimination claim. You can avoid this problem by giving all applicants the same tests instead of only testing specific groups.
Disability Discrimination Under the ADA
An applicant or employee who takes prescription drugs for a covered disability under the Americans with Disabilities Act may test positive on a drug screen, depending on the type of drug he or she is prescribed.
For example, if an applicant is prescribed opiates for a covered disability, he or she might file a lawsuit if a job offer is rescinded based on the test results. Applicants should be given the opportunity to explain or challenge drug test results if they will be used to make adverse job decisions.
Employers that tell others about an applicant’s or employee’s false positive drug screen result place their companies at risk of defamation lawsuits when the employers knew or should know that the results were inaccurate. Employers are also not allowed to divulge the private medical information of employees to others in the workplace.
Invasion of Privacy
If an employer conducts drug testing in the workplace in a way that violates the privacy of its employees, the employer may face a lawsuit for invasion of privacy. For example, if an employee or applicant is forced to disrobe in front of others when performing a pre-employment drug test or an employment drug screen, the employee might have grounds to file a lawsuit.
Since state regulations and laws about employment drug testing vary and constantly evolve, employers should talk to attorneys if they have concerns about whether their drug testing programs and policies comply with all relevant laws.
When you work with a trusted partner like iprospectcheck, we complete drug testing in a way that complies with all of the laws.
In general, your drug testing policies and procedures should adhere to the following guidelines:
- Notify applicants in advance that pre-employment drug testing is a part of your screening process.
- Give the same type of test to applicants for the same positions.
- Choose a company that has a state-certified laboratory.
How to Conduct a Pre-Employment Drug Test
Before starting a drug-testing program at your company, you should research the federal and state laws and regulations to make sure that you comply with the requirements.
After you do this in consultation with legal counsel, you should implement the following steps.
1. Draft a written policy and procedure.
Make sure to put your drug screening policy in writing in a policy that complies with any applicable federal or state laws.
2. Provide notice of your intent to conduct pre-employment drug screens or random drug screens.
Applicants and employees must receive advance notice of their employers’ intent to conduct a drug screen. Make sure that this notice is provided to the applicant or employee in writing as a standalone form.
3. Obtain written consent.
After you have ordered a drug test, the applicant or employee will be sent an email asking for consent to be tested. This form asks the candidate to authorize the administration of the drug screen.
4. Select a drug testing site.
After an applicant or employee has provided consent, he or she will be given instructions for where to go to complete the test.
5. Track the chain of custody.
The chain of custody of the candidate’s sample will be tracked from the time of collection through the analysis and disposal of the sample. Candidates are given a form that they must bring to the testing site together with a valid photo ID.
6. The drug test is completed.
Employees and candidates provide a urine, hair, or saliva sample at the collection site. They should be encouraged to bring any prescriptions that they currently take to reduce the risk of false positives.
7. Medical review is performed.
A medical review officer will review the test results to ensure accuracy. If the test is positive, the MRO will take reasonable steps to verify the candidate’s medical records and prescriptions and will perform a confirmation test on the sample.
8. Results are provided.
Within one to three days, both you and the candidate or employee will be able to review the results. Candidates are generally only notified if their results are positive.
9. Take appropriate action.
If you decide to make an adverse hiring decision based on information from a background check or pre-employment drug test, you must follow the adverse action process under the Fair Credit Reporting Act before finalizing your decision.
What Happens if you Test Positive on a Pre-employment Drug Test?
If you test positive on a pre-employment drug test during the initial screening, your sample will be sent for confirmation testing. If the confirmation test also reveals a positive result, a medical review officer will review the chain of custody of the sample and the results.
Depending on the results, you might be contacted by the MRO to answer questions about any prescriptions you might take that might explain the positive test. For example, if your sample tested positive for benzodiazepines, you might be asked whether you have any current prescription for this class of drugs.
An MRO might not contact you. Instead, you might first learn your results from a human resources professional at the company where you applied. In most cases, failing a pre-employment drug test will mean that you will not be eligible for the position.
Before a company can conduct pre-employment drug tests, they must first clearly state that an offer of a position to the candidate is contingent on passing a pre-employment drug test. Companies might make this type of statement in the job posting, a conditional offer of employment letter, or in another official document.
A clear statement that your offer is contingent on passing a pre-employment drug test gives a prospective employer the right to rescind an offer if you fail the test. In addition to a pre-employment drug screen, some employers also require candidates to agree to random drug tests after they are hired if the employers suspect that the candidates might be using substances either on or off duty when the substance use might affect workplace safety and job performance.
Once your prospective employer notifies you that your drug test was positive, you can request that the specimen be retested. If the lab collected a split specimen sample, the lab will retain the second sample for potential retesting when the initial sample tests positive. If the lab only collected one sample, it might save a portion of the sample for potential retesting.
If you are notified by a medical review officer that your drug test was positive, you will have 72 hours to ask for a retest. You can make this request orally or in writing. If you request a retest of the original sample or of the split sample, it will trigger the confirmation testing. You will have to pay for the cost of the retest and should be prepared to do so.
If you make a timely request for a retest, the medical review officer will send a notice in writing to the lab to forward the portion of the initial sample or the split sample. The time and date of your request for retesting will be reported by the MRO to the company, and the MRO will also report whether the retest confirmed the positive result.
Typically, some time will pass between an interview, job offer, and your pre-employment drug screen. If you cannot abstain from using drugs during that period, you might consider whether treatment could benefit you.
Can You Retake a Pre-Employment Drug Test?
While you have the right to request a retest at your own expense when you fail a pre-employment drug test at your own expense as described above, you do not have a right to retake a pre-employment drug test. Instead, if you dispute the results, your original sample will be retested. You will not be asked to submit a new sample.
iprospectcheck: Your Trusted Partner for Fast, Accurate, Compliant Drug Testing & Clinical Services
Pre-employment and random employment drug tests are important for protecting the safety of your workplace and your employees. When you include drug screens as a part of your pre-employment background check process, you can find candidates that are well-suited for your workplace.
At iprospectcheck, we offer comprehensive pre-employment background checks and clinical services to our clients. Our professional staff members use the latest technology and methods to quickly return results.
To learn more, contact us today for a free quote and consultation.
DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.