Passing the Tests: Drawing the Line With Prospective Employers

It's nervewracking to interview for a new job. And it can be even more unnerving when a job offer depends on passing a test such as those for drug and alchohol use. Find out when and whether they are legal.

Ostensibly, prospective employers and employees want the same thing: to match the best possible person with the most fitting job. But these days, there are a number of tests that purport to take the guesswork out of this process. Ploughing through the Information Age, many employers are quick to welcome outside evaluations of an individual's mental and physical fitness and integrity, and to believe in their results -- often at the risk of sacrificing individual privacy rights.

Medical Examinations

A number of insurers require employees to undergo medical evaluations before coverage will begin. Beyond that, and often in addition to that, employers may require specific physical and mental examinations to ensure a qualified workforce. However, there are strict rules on when those exams can be conducted -- and on who can learn the results.

Employers may legally give prospective employees medical exams to make sure they are physically able to perform their jobs. However, timing is crucial. Under the federal Americans With Disabilities Act, or ADA, covered employers cannot require medical examinations before offering an individual a job. They are, however, free to make an employment offer contingent upon a person's passing a medical exam.

Courts have also ruled that the constitutional right to privacy covers medical information and that honesty is the only policy when it comes to medical tests for prospective and existing employees. That is, employers must identify what conditions they are testing for -- and get individual consent to perform the tests before they proceed.

During the course of a medical exam, a company-assigned doctor may ask anything at all about an applicant's health and medical history. However, the final medical evaluation is supposed to include only a stripped-down conclusion: able to work, able to work with restrictions, not able to work.

Testing for Drugs and Alcohol

The abuse of drugs such as alcohol and cocaine has been widely publicized for many years -- and many private employers now test for drug and alcohol use. The laws regulating drug use in the workplace and testing employees for such use, however, are relatively new and still being shaped by the courts. Currently, there is a hodgepodge of legal rules controlling drug testing -- some in the Americans With Disabilities Act, some set out in specific state laws and a number established through court decisions.

The major law on workplace drugs is narrow -- and it contains a few teeth. The Drug-Free Workplace Act, passed in 1988, dictates that workplaces receiving federal grants or contracts must be drug-free or lose the funding, although it does not call for testing or monitoring workers.

Work-related drug tests take a number of forms. Analyzing urine samples is the method most commonly used, but samples of a worker's blood, hair and breath can also be tested for the presence of alcohol or other drugs in the body. Typically, state laws set out the testing methods that must be used. Many statutes provide for retesting, at the employee's expense, following a positive test.

Metabolics of illegal substances remain in urine for various periods: cocaine for approximately 72 hours, marijuana for three weeks or more. Detectable residues apparently remain in hair samples for several months.

In general, employers have the right to test new job applicants for traces of drugs in their systems as long as:

• the applicant knows that such testing will be part of the screening process for new employees
• the employer has already offered the applicant the job
• all applicants for the same job are tested similarly, and
• the tests are administered by a state-certified laboratory.

Today, most companies that intend to conduct drug testing on job candidates include in their job applications an agreement to submit to such testing. If, in the process of applying for a job, you are asked to agree to drug testing, you have little choice but to agree to the test or drop out as an applicant.

To read and printout a copy of the Form please link below.

Quiz: Employee Attributes

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Copyright © 2002 Nolo

Disclaimer

This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.