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    7 Things Restaurants Should Know About Drug Testing

  • Here's how to keep you employees and customers safe, without running afoul of federal laws.

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    A drug testing policy can be key to your brand's workplace culture.

    Given the nation’s ongoing opioid epidemic and states’ efforts to decriminalize marijuana, it should come as no surprise that drug use in the workforce is at its highest rate in more than a decade.

    The good news is your restaurant can maintain a drug testing policy and procedure that protects the safety of your workers and customers, without running afoul of federal laws, like the Americans with Disabilities Act, or local laws, which vary from state to state. But to do so, you will need a strong drug testing policy, vetted by counsel, and you need to make sure that your management team is well-versed in the implementation of that policy.

    If you are preparing a drug testing policy for the first time at your restaurant or revising your existing policy, here are seven things you should know: 

    1. A drug test can theoretically be performed at any time. Federal law does not prohibit pre-employment drug testing; testing based on reasonable suspicion; periodic or random drug testing (depending on the nature of the employee’s job); or post-incident drug testing. However, some states do have laws regulating how and when employers may conduct drug testing.

    2. Post-offer drug tests are generally safer than pre-offer drug tests. A good drug test will include questions about lawful medications the applicant (or employee) is taking that might affect the results of the test, but these questions cannot be asked in the context of pre-offer drug tests because these questions are a "medical examination" for ADA purposes. That's why employers are encouraged to postpone drug tests until the post-offer stage. You can always extend an offer that is conditional on drug test results, and then withdraw the offer if the applicant tests positive for illegal drug use. The applicant is not protected under the ADA in this scenario, because illegal drug use is not a disability under the ADA.

    3. Pre-offer drug tests require safeguards. If you must conduct a drug test pre-offer, take precautions to ensure that all pre-offer testing is narrowly-tailored and compliant with the ADA.

    4. The less you know, the better. It is also advisable that you tell drug testing companies to give you pass or fail results, and ask them not to inform you of any further detail. In this arrangement, the presence of legitimate prescription drugs, without more, would constitute a passing result. The less you know the better. If you know about a person’s legitimate prescription drug use, and then take an adverse employment action against them, you could be challenged with allegations of disability discrimination. If you receive results of a drug test indicating that an individual is taking prescription drugs, you must treat that information as a confidential medical record. 

    5. Medical marijuana needs a second look. If you operate in a state that allows the use of medical or recreational marijuana, you should take pause to reassess your existing drug testing policies, because if you test, and if an employee is using medical marijuana for a disability, you may need to undergo the interactive/reasonable accommodation process. While the ADA does not require accommodation for marijuana use, state laws may.

    6. Recovering drug addicts are protected under the ADA. In administering drug tests, you may be required to make reasonable accommodations for recovering drug addicts. Persons addicted to drugs who are no longer using drugs illegally, are receiving treatment for drug addiction or have been rehabilitated successfully are protected by the ADA from discrimination on the basis of past drug addiction. It does not violate the ADA to require more frequent drug testing of a person identified as a former drug abuser.

    7. You can establish employee assistance programs in place of discipline or discharge for drug use. If you encounter a high number of positive drug test results and are struggling to maintain an adequate number of employees, you may establish employee assistance programs for employees who abuse drugs or alcohol. However, the ADA does not require that an employer provide an opportunity for rehabilitation in place of discipline or discharge for employees who are currently using illegal drugs. For example, you could allow an employee to work a modified schedule so that the employee can attend an ongoing self-help program. Before implementing this type of program, you should first seek additional information regarding the associated risks and benefits.

    Kacy Coble is an attorney in the Memphis and Nashville offices of Constangy, Brooks, Smith & Prophete LLP where she counsels employers on a wide range of labor and employment issues. She may be reached at [email protected].