7.3 Drug testing and background checks

Drug testing and background checks are crucial tools employers use to ensure workplace safety and make informed hiring decisions. These practices help identify potential risks and verify candidate information, but they're subject to complex legal regulations.

Employers must navigate state and federal laws, balancing safety concerns with employee privacy rights. Developing clear policies, obtaining proper consent, and following fair procedures are essential to mitigate legal risks and maintain a compliant screening process.

Types of drug tests

• Drug tests are used to detect the presence of illegal or prescription drugs in a person's system
• Different types of drug tests have varying detection windows and accuracy rates

Urine tests

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• Most common type of drug test used by employers
• Detects drug use within the past few days to weeks, depending on the substance
• Can be easily tampered with or diluted, leading to false negative results
• Requires a private bathroom for sample collection (observed or unobserved)

Hair follicle tests

• Analyzes a small sample of hair to detect drug use over a longer period (up to 90 days)
• More difficult to tamper with compared to urine tests
• Higher cost and longer processing time than other methods
• May not detect very recent drug use (within the past few days)

Blood tests

• Highly accurate but invasive and expensive method
• Detects current intoxication or very recent drug use (within hours to a few days)
• Requires a trained medical professional to collect the sample
• Not commonly used by employers due to cost and invasiveness

Saliva tests

• Collects a saliva sample using a swab or absorbent pad
• Detects recent drug use (within hours to a few days)
• Less invasive and easier to administer than blood or urine tests
• May be less accurate than other methods for some substances
• Useful for detecting current impairment or very recent drug use

Reasons for drug testing

• Employers may conduct drug tests for various reasons related to safety, liability, and productivity
• Drug testing policies should be clearly defined and consistently applied to all employees

Safety-sensitive positions

• Certain jobs involve high-risk tasks or operating heavy machinery (transportation, construction, healthcare)
• Drug testing helps ensure that employees in these roles are not impaired on the job
• Reduces the risk of accidents, injuries, and fatalities caused by drug-related impairment

Workplace accidents

• Drug tests may be conducted following a workplace accident or injury
• Helps determine if drug use was a contributing factor to the incident
• Can impact workers' compensation claims and liability for the employer

Reasonable suspicion

• Employers may test an employee if there is reasonable suspicion of drug use based on observable signs and symptoms
• Signs may include erratic behavior, slurred speech, bloodshot eyes, or the odor of drugs or alcohol
• Supervisors should be trained to recognize and document signs of impairment

Random testing programs

• Some employers implement random drug testing for all or a subset of employees
• Helps deter drug use and identify employees with substance abuse issues
• Must be conducted in a truly random manner without bias or discrimination
• Commonly used in industries with high safety risks or regulated by federal agencies (DOT)

Legal considerations

• Drug testing laws vary by state and industry, and employers must navigate a complex legal landscape
• Balancing safety, liability, and privacy concerns is crucial when implementing drug testing policies

State laws on drug testing

• Some states have specific laws regulating when and how employers can conduct drug tests
• Restrictions may include requiring reasonable suspicion, limiting random testing, or mandating confirmatory tests
• Employers must review and comply with applicable state laws in addition to federal regulations

Federal laws and regulations

• Certain industries, such as transportation and aviation, are subject to federal drug testing regulations (DOT, FAA)
• The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities, including those with a history of substance abuse who are currently in recovery
• The Family and Medical Leave Act (FMLA) may provide job-protected leave for employees seeking treatment for substance abuse disorders

Medical marijuana and drug testing

• Many states have legalized medical marijuana, creating challenges for employers' drug testing policies
• Some states prohibit employers from discriminating against employees who use medical marijuana off-duty and in compliance with state laws
• Employers should review state laws and consider accommodations for employees with valid medical marijuana prescriptions

Disability discrimination and drug testing

• The ADA protects individuals with disabilities from discrimination, including those with a history of substance abuse who are currently in recovery
• Employers must provide reasonable accommodations for employees with substance abuse disorders, such as time off for treatment or modified job duties
• Drug tests must be job-related and consistent with business necessity, and not used to screen out individuals with disabilities

Drug testing policies

• Developing clear, comprehensive, and legally compliant drug testing policies is essential for employers
• Policies should be consistently applied and communicated to all employees

Written policy requirements

• Drug testing policies should be in writing and included in employee handbooks or other policy documents
• Key components include the purpose of testing, types of tests used, substances tested for, and consequences of positive results
• Policies should also address confidentiality, privacy, and the appeals process for positive tests

Communicating policies to employees

• Employers must ensure that all employees are aware of the drug testing policy and have access to the written document
• New hires should receive a copy of the policy and acknowledge receipt in writing
• Regular training and reminders can help reinforce the policy and ensure ongoing compliance

Consequences of positive tests

• Policies should clearly outline the consequences of a positive drug test, which may include disciplinary action, termination, or referral to a substance abuse treatment program
• Employers should apply consequences consistently and in accordance with the written policy
• Some states may require employers to offer rehabilitation or treatment options before terminating an employee for a positive test

Confidentiality of test results

• Drug test results are considered confidential medical information and must be kept separate from general personnel files
• Access to test results should be limited to those with a legitimate need to know, such as HR professionals or safety managers
• Employers must ensure that test results are not disclosed to unauthorized individuals or used for discriminatory purposes

Background check basics

• Background checks are a common pre-employment screening tool used to verify information provided by job candidates and identify potential risks
• Employers must comply with federal and state laws governing background checks, including obtaining consent and providing required disclosures

Types of background checks

• Criminal history checks: Searches for felony and misdemeanor convictions, arrests, and pending charges
• Employment verification: Confirms a candidate's employment history, including job titles, dates of employment, and reasons for leaving
• Education verification: Verifies a candidate's educational background, including degrees earned and attendance dates
• Credit checks: Reviews a candidate's credit history and financial standing (restricted in some states)
• Motor vehicle records: Checks a candidate's driving history, including accidents, violations, and license status

Fair Credit Reporting Act (FCRA)

• The FCRA is a federal law that regulates background checks conducted by third-party consumer reporting agencies (CRAs)
• Employers must follow specific steps when using CRAs, including obtaining written consent, providing a standalone disclosure, and notifying candidates of adverse actions
• The FCRA also requires CRAs to maintain accurate and up-to-date information and allows individuals to dispute inaccurate or incomplete records

Consent and disclosure requirements

• Before conducting a background check through a CRA, employers must obtain written consent from the job candidate
• A standalone disclosure document must be provided, informing the candidate that a background check will be conducted and may be used to make employment decisions
• The consent and disclosure cannot be combined with other application materials or include extraneous information

Adverse action procedures

• If an employer decides not to hire a candidate based on information in a background check, they must follow the FCRA's adverse action process
• Pre-adverse action: The employer must provide the candidate with a copy of the background check report and a summary of their rights under the FCRA
• Waiting period: The employer must allow a reasonable amount of time (typically 5-7 days) for the candidate to review and dispute any inaccurate information
• Adverse action notice: If the employer proceeds with the adverse action, they must provide a final notice to the candidate, including the CRA's contact information and the candidate's right to obtain a free copy of the report

Criminal background checks

• Criminal background checks are a common type of pre-employment screening, but their use is subject to various legal restrictions and best practices
• Employers must balance the need to maintain a safe workplace with the rights of job candidates and the risk of discriminatory hiring practices

State and federal laws

• Some states have laws limiting the use of criminal history information in hiring decisions, such as prohibiting inquiries about arrests without convictions or setting time limits on the age of convictions that can be considered
• Federal guidance from the Equal Employment Opportunity Commission (EEOC) recommends that employers conduct individualized assessments and consider the nature and gravity of the offense, the time passed, and the relevance to the job

Ban-the-box legislation

• Many states and local jurisdictions have enacted "ban-the-box" laws, which prohibit employers from inquiring about criminal history on initial job applications
• These laws aim to provide fair hiring opportunities for individuals with criminal records by delaying background checks until later in the hiring process
• Employers must review applicable ban-the-box laws and adjust their hiring practices accordingly

Arrest vs conviction records

• Arrest records alone generally cannot be used to make employment decisions, as an arrest does not establish guilt
• Conviction records may be considered, but employers should evaluate the relevance of the conviction to the specific job duties and conduct individualized assessments
• Some states prohibit or limit the use of certain types of convictions, such as sealed or expunged records

Individualized assessments

• The EEOC recommends that employers conduct individualized assessments when considering criminal history information
• Factors to consider include the nature and gravity of the offense, the time passed since the offense or completion of the sentence, and the nature of the job sought
• Individualized assessments help ensure that criminal history information is used in a job-related and consistent manner, reducing the risk of discrimination claims

Other background checks

• In addition to criminal history checks, employers may conduct other types of background checks to verify information provided by job candidates and assess their suitability for the position
• These checks are subject to various legal requirements and best practices

Employment verification

• Employers may contact a candidate's previous employers to confirm their job titles, dates of employment, and reasons for leaving
• Some states limit the information that former employers can disclose without the candidate's consent, such as performance evaluations or disciplinary actions
• Employers should obtain consent from candidates before conducting employment verifications and ensure that the information obtained is job-related and consistent with business necessity

Education verification

• Education verification confirms a candidate's educational background, including degrees earned, institutions attended, and dates of attendance
• Employers should obtain consent from candidates before verifying their education and ensure that the information is relevant to the job requirements
• Some positions may require specific degrees or certifications, making education verification a crucial part of the background check process

Credit checks

• Credit checks review a candidate's credit history and financial standing, including credit scores, outstanding debts, and payment history
• The use of credit checks is restricted in some states, and employers must comply with the FCRA's requirements for obtaining consent and providing disclosures
• Credit checks should only be conducted when the information is job-related and consistent with business necessity, such as positions involving financial responsibilities or access to sensitive data

Motor vehicle records

• Motor vehicle record checks review a candidate's driving history, including accidents, violations, and license status
• These checks are commonly used for positions that require driving as part of the job duties, such as delivery drivers or sales representatives
• Employers must obtain consent from candidates before conducting motor vehicle record checks and ensure that the information obtained is job-related and consistent with business necessity

Legal risks and best practices

• Employers face various legal risks when conducting background checks and making hiring decisions based on the results
• Developing compliant policies and following best practices can help mitigate these risks and ensure fair and non-discriminatory hiring practices

Discrimination claims

• Employers must ensure that their use of background check information does not result in disparate impact or disparate treatment of protected classes, such as race, national origin, or disability
• Disparate impact occurs when a facially neutral policy or practice disproportionately affects a protected class, while disparate treatment involves intentional discrimination based on a protected characteristic
• To avoid discrimination claims, employers should consistently apply background check policies, conduct individualized assessments, and ensure that hiring criteria are job-related and consistent with business necessity

Negligent hiring and retention

• Employers have a legal duty to exercise reasonable care in hiring and retaining employees to ensure a safe workplace
• Failure to conduct appropriate background checks or to act on information revealing potential risks can lead to negligent hiring or retention claims if an employee causes harm to others
• To mitigate these risks, employers should conduct thorough background checks, investigate any red flags, and take appropriate action when necessary

Developing compliant policies

• Employers should develop written background check policies that comply with all applicable federal, state, and local laws
• Key components of a compliant policy include obtaining consent, providing required disclosures, following adverse action procedures, and ensuring the confidentiality of background check information
• Policies should be regularly reviewed and updated to reflect changes in legal requirements and best practices

Working with background check providers

• Many employers choose to work with third-party background check providers (CRAs) to conduct screenings on their behalf
• When selecting a CRA, employers should ensure that the provider complies with the FCRA and other applicable laws, maintains accurate and up-to-date information, and follows best practices for data security and privacy
• Employers should also have a clear understanding of the services provided by the CRA, the turnaround time for results, and the process for disputing inaccurate or incomplete information