Title VII of the Civil Rights Act of 1964:
- Applies to employers with 15 or more employees and prohibits discrimination in employment on the basis or race, color, religion, national origin, and sex.
- So, if an employer selectively tests only certain individuals and it's shown that only certain classification of minorities are tested, the employer could be liable.
The American with Disabilities Act:
- Inquiries regarding the use of illegal drugs are permitted but it is impermissible to inquire about current or prior lawful use of controlled substances or medication.
- Prior drug addiction is considered a disability under the ADA, so information regarding prior addiction cannot be elicited at an interview.
- Drug and Alcohol Testing is NOT considered a medical exam under the ADA.
The federal rules regarding a Drug Free Workplace:
- Federal contractors or individuals contracting with the federal government are required to ensure a drug free workplace by preparing and distributing an anti- drug policy statement prohibiting drug activity in the workplace. They must also specify the consequences for violators of the policy.
Department of Defense:
- Contractors with the DOD must make a drug free policy statement and specify criteria to maintain that policy, including drug testing of employees in sensitive positions, and supervisory training to identify drug use.
Department of Transportation:
- Employees of transportation industry firms or jobs with safety/security functions are required to perform drug testing. This applies to employers in industries regulated by the FHA, FAA, FRA, FTA, etc.
Virginia Tort Laws:
- Assault/Battery: If an employee refuses to submit to a test, accept the refusal and deny or terminate the employment. Be careful not to make any threats or forcibly retain the person.
- Defamation: The employer could be subject to defamation if s/he discloses false information to a third person that may injure the reputation of the employee, so take care not to not rely on unconfirmed results.
- In the case of a positive test, the best policy is to administer a second test to confirm the first as well as keep all results confidential.
- An employer who for job related reasons requires an individual to be tested for alcohol or controlled substances, must 1) have the specimen tested by a lab that holds a Maryland license in the discipline of job related testing; and 2) at the time of the testing and at the individuals request, inform the person of the name and address of the lab that will test the specimen.
- Positive Results: If an employer receives notice of positive test results, employer must provide applicant/employee with:
- Copy of results, copy of employer's policy, notification that employer intends to take disciplinary action (if it intends to do so), and a statement of employee's right to an independent test.
- Should be given in person or by mail within 7 days of employer's receipt of positive results.
- Right to Independent Test:
- Employer/applicant may request independent test on same specimen by notifying the employer and lab of the challenge to the test, request lab to send specimen to different lab, with costs of independent test paid by employee/applicant.