Pre-Employment Drug Test Laws Explained

Pre-employment drug testing can help maintain a safe workplace, but rapidly changing laws around drug use make it tough for hiring managers to stay current with pre-employment drug test laws.

Here’s what employers need to know about pre-employment drug test laws and why working with a Consumer Reporting Agency (CRA) can help keep your hiring practices compliant, consistent, and fair.

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It’s not uncommon for employers to perform pre-employment drug testing on job candidates as part of the hiring process. Why? Drug tests help detect the recent use of illicit and prescription drugs that may impact a candidate’s ability to perform their job and maintain a safe workplace. Pre-employment drug testing is also critical to:

• Reduce the risk of accidents and injuries
• Discourage and prevent drug use on the job
• Decrease chances of turnover and absenteeism
• Comply with any industry-specific regulations

But with rapidly changing laws—like the legalization of recreational and medicinal marijuana in some states—it can be difficult for hiring managers to stay up-to-date about current pre-employment drug test laws. That’s why GoodHire is sharing what employers need to know about pre-employment drug test laws and why working with a Consumer Reporting Agency (CRA) like GoodHire can help you remain compliant, consistent, and fair in your hiring practices whether your candidate has a negative or positive drug test.

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Company Drug Test Policies

First, if a company conducts or is planning to conduct drug screenings, it must have a written policy in place for at least 30 days before starting a drug-screening program. This also needs to happen before drug-screening services can be purchased through a CRA. When drafting your work drug test policy, consult with your legal counsel to ensure it adheres to fair practices and is compliant with federal and state drug-screening laws.

Federal Drug-Screening Laws

Federal laws about drug testing are designed to protect both employers and employees. Additionally, they’re meant to promote safe work environments while also ensuring fair hiring practices are followed. 

Here’s a breakdown of the most common federal drug-screening laws.

Fair Credit Reporting Act Of 1970 (FCRA)

This federal law was initially created to protect personal financial data used to create consumer credit reports. Since then, FCRA has been expanded to include background check services performed by CRAs like GoodHire to protect employers and candidates. FCRA ensures that candidates: 

• Have the right to be informed and give signed consent when a background check or drug screening is performed
• Have the right to review information gathered about them and correct any errors
• Have the right to know when information about them is used in hiring decisions that impact them

Violations of the FCRA can be costly—anywhere from $100 to $1,000 per violation—but can add up to multi-million dollar settlements. FCRA lawsuits and settlements against employers  have been steadily increasing over the past few years.

Title VII of the Civil Rights Act Of 1964

This federal law prohibits employers from discriminating against anyone based on their: 

• Sex
• Race
• Religion
• Color
• National Origin

So, how does this relate to pre-employment drug testing? It makes it illegal for hiring managers and employers to single out particular candidates or groups of people for drug testing based on protected classes. Challenges to this specific law are rare, but it’s still essential to ensure employers aren’t participating in discriminatory hiring practices—drug screening included.

Americans With Disabilities Act Of 1990 (ADA)

The ADA prohibits employers from discriminating against candidates with physical disabilities. When it comes to drug testing specifically, it makes it illegal for hiring managers to discriminate against those who have a history of substance abuse, are recovering from substance abuse, or are presently enrolled in a rehabilitation program.

Under the ADA, candidates also cannot be singled out for drug screenings because they may appear to be under the influence of alcohol or drugs. Some of the signs and symptoms of being under the influence may be related to a disability, illness, or medical condition. 

Additionally, questions about any of the above—or prescriptions to treat them—should not be asked during the hiring or drug-testing process. However, candidates should be advised to bring any prescription medicines with them to their drug test so screening facilities are aware of what may appear on the results.

Drug-free Workplace Act Of 1988

This federal law is specific to federal contractors and grantees. Under this act, employers must implement a drug-free workplace policy if they:

• Receive federal contracts of $100,000 or more
• Receive federal grants of any size

In addition, these workplaces must have a drug-free awareness program, distribute a formal drug-free workplace policy, and report and discipline any employee convicted of criminal drug violations.

State Drug Testing Laws

Pre-employment drug test laws vary from state-to-state. These variations can include things like:

• The types of employers that have to comply
• When employers can refuse to hire candidates
• Whether candidates can contest or explain positive results
• When drug test results expire, and much more

To determine the drug-screening laws for your state, hiring managers can get started by reviewing this comprehensive list provided by the American Civil Liberties Union (ACLU). 

Additional state laws—like the legal use of recreational and medical marijuana—have made pre-employment drug testing (including marijuana screening) a bit more challenging for employers. 

For example, cities like New York City recently adopted laws prohibiting employers from testing for marijuana except in certain circumstances. As a result, employers in those jurisdictions may choose to stop testing for marijuana unless required by industry drug-screening laws.

To keep up with rapidly changing marijuana drug laws, GoodHire offers 4-panel drug screening options for employers who choose not to test for marijuana but don’t want to eliminate drug testing altogether. But for employers who still want to include marijuana in drug screenings, GoodHire offers a range of options, including 5-panel, 8-panel + MQL, and 10-panel drug screenings, among others.

Perform Fair & Compliant Drug Screenings With GoodHire

Like other aspects of the screening and hiring process, it’s always crucial to consult with your company’s legal team about pre-employment drug testing policies. 

With multiple screening options for employers of all sizes, GoodHire can help you promote and maintain a safer, more productive work environment. 

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