Navigating Complex Issues of Employment Negligence (Part V)

By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

Note: This article contains content adapted from lesson material written for APUS classes. This is the fifth article in a seven-part series on the particulars of employment negligence law and smart employer strategies for avoiding unnecessary workplace liability.

In the third and fourth parts of this series, we examined the use of physical fitness, ability, integrity, personality and specific skills tests in hiring. In this part, we’ll scrutinize drug and substance use testing as screening tools.

Drug and Substance Use Testing

Drug and substance use testing is a final common screening tool employers use. This type of test is often conducted after a job offer is made with employment conditional upon passing. But it is important to note that such tests can be — and sometimes are — conducted periodically during the employment itself.

The most common drug testing looks for illicit controlled substances; that is to say, drugs that are illegal for use in any context. If an applicant or existing employee tests positive for an illegal substance, this is almost always sufficient reason for the employer to deny or terminate employment, as the case may be.

The reasoning here is several-fold. First, failing such a test is prima facie evidence that the applicant or employee has broken the law; second, such substances usually impair the mind or body or both. This is a substantial concern for employers for reasons of potential vicarious liability for an impaired employee’s actions. Vicarious liability is the topic of a future article in this series.

What Happens to Employment Testing When a Substance Is Not Illicit?

The issue of substance testing becomes a bit more complicated when the substances are not illicit. Controlled substances also include those that may be legally consumed with a valid medical prescription. Thus, if an individual tests positive in a substance screening, and he or she does not have a valid prescription, the employer is justified in taking adverse action for the same reasons discussed above. However, if the individual has a prescription, this raises more questions.

Is the prescription an ongoing medicinal need that the individual expects to maintain indefinitely? If so, would consumption of the legally prescribed substance impair the individual such that he or she could not perform the duties of the job being sought? If so, can reasonable accommodation be made? If not, is the individual eligible for a different job that would not be affected by the medication?

To complicate this situation further, if the individual is medicating for a condition recognized under the ADA, that raises a whole host of other legal discrimination concerns. The key for HR professionals is to ask the right questions and to be flexible to accommodate where and when the law requires.

Employment Discrimination and Legal Substances

There is one final issue on the subject of substance screening: What about legal substances? Are employers permitted to discriminate in employment based on the consumption of legal substances such as tobacco? The short answer is yes, at least so far. Recently, more and more employers are banning harmful-but-legal substance use on the grounds that workers with unhealthy habits are more expensive to employ.

Take tobacco, for example. Tobacco use has been conclusively linked to adverse health effects; smoking generally can lead to cancer, emphysema and other sometimes fatal respiratory maladies. One might argue that those consequences for smokers aren’t their employers’ problems. However, adverse health effects substantially raise health insurance premiums, including the portion of premiums that employers are legally required to subsidize under the Affordable Care Act.

Thus, since tobacco consumption is not, in and of itself, a protected class, more and more employers are implementing tobacco-free workplace initiatives. This is quite different from the illegal and controlled substances policies because tobacco has not been shown to impair any mental or physical functions.

Again, tobacco use is not explicitly protected by law so employers are free to discriminate against its use. But as with any other exclusionary policy, employers should be very careful to ensure that their initiatives do not have the effect of discriminating against classes that are protected. We discussed disparate treatment earlier in this series.

Some Opponents Argue that Tobacco Addiction Should Be Classified as a Disability

Some opponents of tobacco-free workplace policies argue that tobacco addiction should be classified as a disability under the ADA and that adverse employment decisions based on tobacco use should be viewed as illegal discrimination. Others argue that employers dictating off-work personal activities violate employees’ rights to privacy. Currently, there is little legal precedent to predict the continued legal status of these policies, so employers should watch for legal evolution in the years ahead.

Employers are usually not required under federal law to conduct any type of drug testing for employment, unless they are either a federal contractor or grantee subject to the Drug-Free Workplace Act of 1988. However, individual state laws may contain additional requirements. Some states, for example, require reasonable suspicion before a drug-test can be conducted, whereas other states allow random periodic testing without any prompting or notice.

Summarizing the discussion over the last three parts of this article, it is absolutely critical that, whenever an employer considers using a new screening tool, he or she must be certain of two things:

1. The proposed screening tool is narrowly tailored to the needs of the job in question.
2. The proposed tool does not have the intent or effect of discriminating against a protected class of applicants.

In the next part of this series, we’ll look at the other primary way that businesses can expose themselves to negligence through their employees: vicarious liability.

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.