Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back

Know The Law: Drug Testing in the Workplace

Written by: Charla Bizios Stevens

Published in the Union Leader

This question was answered by Charla Bizios Stevens of the McLane Law Firm

Q. I own a New Hampshire business and am concerned that a few of my employees may be impaired by alcohol or drugs at work . I am worried about both their safety and my liability and wonder if adopting a drug testing policy would help. How would I go about initiating that?

A. In light of recent publicity about the extent of substance abuse and the effect on New Hampshire workplaces it is appropriate for you to consider taking proactive measures. Substance abuse is a real safety concern as well as a cause of millions of dollars in lost productivity. Before drug testing, however, there are a number of preliminary matters you should address.

First, is your business is in an industry which either requires or has standards for drug testing? For example, drivers with commercial licenses may be covered by Department of Transportation (“DOT”) regulations which specifically address drug and other medical testing. You should be consult those regulations for guidance.

Assuming no specific requirements apply to your company, be aware that there are generally three types of drug testing: 1) pre-employment, 2) reasonable suspicion or post-accident/injury, and 3) random. Drug testing is a medical test and  must be conducted consistent with the requirements of the Americans with Disabilities Act (“ADA”).

Pre-Employment. After an offer of employment has been made, the employer may require a drug test and may condition the offer on the results, provided all entering employees are subject to the same examination, and testing is administered to all applicants within the job category.

Post Incident/Reasonable Suspicion. Employers sometimes implement policies requiring drug tests after an employee sustains a work-related injury or causes property damage or injury to others. While the ADA does not prohibit testing for illegal drugs, such testing can raise claims of invasion of privacy. Testing should be implemented pursuant to a written policy describing the program. What constitutes reasonable suspicion should be carefully defined along with the guidelines for the types of injury/damage which would trigger a drug test.

Random. Random drug testing is the least favored option and the most likely to result in a claim of invasion of privacy or discrimination. This type of testing should be undertaken carefully and with due consideration of the pros and cons.

Given that drug and alcohol testing policies are complex and still subject to privacy and ADA concerns, employees should develop their policies with clear objectives in mind and have them reviewed by legal counsel.

Charla can be reached at [email protected].

Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
We invite your questions of business law. Questions and ideas for future columns should be addressed to:  Know the Law, The McLane Law Firm, P.O. Box 888, Manchester, NH 03101 or emailed to [email protected]Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.

Integrity and trust

At McLane Middleton we establish and maintain long-standing relationships with our clients to help us better achieve their unique goals over time. This approach to building trust requires that our esteemed lawyers and professionals use their broad, in-depth knowledge and work together with integrity to ascertain sound resolutions to legal matters for their clients.

Strength in numbers

McLane Middleton is made up of more than 105 attorneys who represent a broad range of clients throughout the region, delivering customized solutions. As a firm we are recognized as having the highest legal ability rating. The firm is rated Preeminent by Martindale Hubbell and is recognized as one of the nation's leading law firms in Chambers USA. Our attorneys are distinguished leaders in their respective practice areas.

Meet Our People

Commitment and collaboration

McLane Middleton's versatile group of attorneys and paralegals become trusted authorities on each case through collaboration. We work with our clients to learn their individual needs first and foremost and, together, we develop comprehensive solutions to their specific legal matters. This approach helps us exceed our clients' expectations efficiently and effectively, client by client, case by case.

Practice Areas

A history of excellence

McLane Middleton was established in 1919 in New Hampshire, and has five offices across two states. However, deep historical roots don't allow you to become innate. Our firm is organized, technological, and knowledgeable. Our history means we are recognized. But our reputation is built on the highest quality of service and experience in very specific areas of law.

The Firm

Intelligence paired with action

Our team continuously seeks opportunities to enhance their professional development and put key learnings to action. The pursuit of further insight guides us to volunteer service opportunities, speaking engagements, and teaching roles. Our lawyers are sought after thought leaders across their industries, and recipients of leadership awards throughout the region.