This post was contributed by Saint Jude Retreats.
Are you on the fence about a hiring decision because the applicant used drugs in the past? Have you considered implementing drug tests, but you’re not sure whether to make them an employment requirement? Substance use is a charged subject for business owners and hiring managers, but there are many nuances you should know before you enforce a permanent policy or a reject a candidate immediately.
What the law requires
You always have the right to require a drug-free workplace, which means you can fire or refuse to hire someone who fails a drug screening. However, according to federal law, that does not mean you can discriminate because of past substance use. The Americans with Disabilities Act protects applicants and employees who were cleared of drug charges, as well as those who stopped using substances and participated in a treatment program[1]
If you do choose to hire an employee who no longer uses substances, you may hold them to the same standards as everyone else. That means if they start using substances again and they fail a random screening or their work suffers as a result, you may dismiss them or pursue other disciplinary measures, just as you would if an employee began using them for the first time.
What to ask the applicant
The same disability requirements also apply to the interview stage. You may not bring up medical conditions, which includes substance use that required treatment. However, you may inquire about criminal charges and mention any that were revealed in a background check. You may also ask about casual use of illegal substances [2].
This is where it gets tricky for many interviewers, because you can’t imply that the applicant needed or sought treatment for substance use in the past. However, if you stick to questions about the recent past and you don’t ask the candidate to quantify their drug use, you’ll be safe. For example, you may ask if they’ve used illegal drugs in the past three months or if they currently drink alcohol, but you may not ask how often they used them or if they were treated for it.
Whether to implement screenings
There’s a big difference between ongoing substance use and a problem that was addressed years or months ago. If you’re interested in maintaining a drug-free workplace, you can implement a random drug testing policy among employees and/or require pre-employment screenings. Of course, there are several different testing methods too, so you may want to weigh the cost of the tests against the money you expect to save by administering them [3]
Every year, employee drug use costs employers an estimated $81 billion [4]. If you fear a decrease in productivity or an increase in injuries because of ongoing drug use, you can choose your screening method accordingly. The most cost-effective tests can only detect very recent substance use, but others go back several months. You may also collect samples on-site (for example, mouth swabs for saliva) or request that applicants and employees visit an off-site facility.
If you care about having a safe, productive workplace and earning the loyalty of clients and customers, you need to be selective about the staff you hire. It’s only natural to want to implement certain hiring standards, especially if your employees handle sensitive information, heavy machinery or large amounts of money. However, some employers miss out on qualified candidates because they can’t see past previous substance use. Keep an open mind. It takes humility and will power to overcome a substance use problem, and past problems are not the same thing as ongoing drug use.
Resources:
[1] https://www.usccr.gov/pubs/ada/ch4.htm
[2] https://eeoc.gov/policy/docs/medfin5.pdf
