Should Your Organization Use Drug Testing?

Posted on October 21, 2011 by Gail Danneman

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Several legal issues are involved in drug testing for job applicants and employees. Because this process can be invasive into an applicant’s life, there are legal issues that should be considered by employers prior to using drug testing as a selection procedure. The organization should also be sure that they are using an appropriate method of drug testing to ensure that applicants do not feel they have been treated unfairly.

One of the most common legal issues that organizations face in using drug testing is the invasion of privacy. Many people believe that this information should be kept private and confidential. There are also applicants that may need to take certain drugs for health related issues and they may feel unfairly treated. Many organizations use random drug testing as a way of keeping tabs on current employees’ drug usage and to discourage drug usage. In my opinion, this legal issue is of great value. Although an applicant provides the prospective organization with a lot of detailed information about themselves, drugs can be a very touchy subject. Because more and more people are prescribed heavy drugs for health-related issues, I feel that organizations should be extremely cautious in the process of drug testing. Confidentiality must be taken very seriously and any employee that has access to applicants’ drug test results should be held accountable.

Another common legal issue with drug testing is unreasonable search and seizure. With the use of random drug testing, many employees feel targeted. If the organization is going to use a random drug test procedure, the testing must in fact be truly random. It would not be wise of the organization to select the same employees over and over again that the organization may feel suspicious towards. This may be interpreted to employees as discrimination and could eventually result in a legal action by the employees part. I feel that random drug testing is a good idea for certain jobs in which drug usage could severely impact the performance of the employee. For example, any job that involves motor vehicle usage would be a great candidate for random drug testing. If an employee is using drugs and driving a company vehicle, the negative consequences could be bad. Therefore, depending on the job, this legal issue may or may not be of greater importance to an organization.

There are some cultures and ethnic groups that may suffer adverse impact if drug testing is utilized. Some cultures and ethnic groups use specific drugs. To a particular culture, there may be a misunderstanding as to why this may be a problem if work performance is not negatively impacted. Therefore, it is the responsibility of the organization to demonstrate how drug use in a particular position would be detrimental to work performance.

In conducting drug testing, an organization should be sure that any unions are aware of the process and procedure. The National Labor Relations Act states that labors should be informed of not only drug testing policies, but other organizational decisions as well. If the organization fails to let the NLRB know, there may be legal consequences. Because unions play a large role in organizations, I feel this legal issue is of great importance. It would not be wise for an organization to risk a unionized strike because of conflict with unions. Therefore, before using any drug testing policy, the organization should speak with union representatives.

There are certain jobs in which drug usage could have negative impacts on employee performance. As previously mentioned, jobs that require driving a vehicle or other equipment are dangerous. If drugs are in an employee’s system, these positions may become even more dangerous. Therefore, organizations should use their best judgment in evaluating whether or not drug testing is appropriate.

About Gail Danneman

Gail received a B.S. in Psychology from Xavier University and an M.S. in Industrial-Organizational Psychology. Her research interests include: recruitment & selection, employee engagement, turnover, training, and succession planning.

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