Drug testing quiz!

What better way to start the Labor Day weekend than with a drug test?

Er, I meant a quiz about drug testing.

Assume that the following are all situations in which drug testing is not legally mandated by some federal law, like the U.S. Department of Transportation regulations. As always, the answers are provided, so if you get one wrong, you're guaranteed to ace it on your second try!

No. 1. Post-offer, pre-employment drug testing violates the Americans with Disabilities Act only when

A. The individual tests positive for medical marijuana, because that reveals the existence of a disability.

B. Post-offer, pre-employment tests for illegal drugs never violate the ADA.

C. Post-offer, pre-employment drug tests always violate the ADA because they're an invasion of privacy, and they're not "job-related and consistent with business necessity."

D. Post-offer, pre-employment drug tests almost never violate the ADA, but theoretically they could -- for example, if the employer used medical information obtained in connection with the drug test to discriminate based on the individual's disability.

ANSWER: D. Post-offer, pre-employment drug tests are usually fine and do not violate the ADA. In part, that is because a test for illegal drugs is not a "medical examination" subject to all the stringent ADA rules that apply to physical or mental examinations or inquiries. Also, during the post-offer, pre-employment stage, the ADA allows the employer to require medical examinations as long as it treats  everybody in the relevant job classification the same way. That means that (1) a routine drug test, in itself, almost never violates the ADA, and (2) at the post-offer stage, questions about the individual's medical conditions or legal medications that might affect the outcome of the drug test -- a necessary part of any drug test -- are also lawful.

However, it is at least theoretically possible for a post-offer drug test to violate the ADA. For example, it would violate the ADA if the employer selected only individuals with disabilities for drug testing, or used medical information obtained in connection with a drug test to discriminate against an individual with a disability.

"Something about this quiz is making me feel strangely ravenous."

No. 2. Zeke is texting while operating a forklift, and he has a head-on collision with Larynx, who is operating his forklift safely. Both are injured. Your company conducts post-accident drug testing. What's the best way to handle the post-accident testing in this situation?

A. Test Zeke, and Larynx, and everyone else in sight.

B. Don't test anyone. The accident and injuries were punishment enough.

C. Test Zeke only, since Larynx didn't do anything wrong but just happened to be in the wrong place at the wrong time. 

D. Don't waste your company's hard-earned money on a drug test. Fire both Zeke and Larynx.

ANSWER: C would be a best practice. Although it would usually be lawful to test both Zeke and Larynx (I don't recommend testing "everyone else in sight"), it's better to test only the employee or employees who were at fault.

No. 3. True or false: An employer in a medical marijuana state must make reasonable accommodations for applicants and employees who test positive for marijuana.

A. True.

B. False.

C. It depends.

ANSWER: C. Marijuana is still illegal under federal law, so failure to accommodate medical marijuana use does not violate the ADA. (There would also be no employer obligation to "reasonably accommodate" legal recreational use of marijuana.) However, users of legal medical marijuana may be protected under state disability discrimination laws. An employer in one of those states might have to consider making reasonable accommodations for an individual who tested positive for marijuana, if the marijuana is being used to treat (or relieve pain associated with) a "disability" as defined by applicable state law. At the very least, an employer in one of those jurisdictions should engage in the "interactive process" with the applicant or employee to determine whether the marijuana use can be accommodated, and how.

"Uhhhh . . . happy Memorial Day . . . or is it Thanksgiving?"

No. 4. True or false: If Dooby's employer suspects that he is using illegal drugs, it could make sure Dooby's name comes up in the next "random" selection so that he can be tested.

A. True.

B. False.

ANSWER: B. If you try this, you might get away with it. Or you might not. It's usually not illegal per se to mess with your "random" pool, but it is unwise. It's not unheard of for employees to claim that they were unfairly singled out for "random" drug tests. They may believe that they were selected because of race, sex, national origin, or in retaliation for engaging in some type of legally protected activity. If that type of allegation is made, you'll need to be able to prove that the selection was truly random. If you're hand-picking Dooby for testing and "slipping him in" to the "random" pool, you will have a tough time convincing anyone that you didn't do it with other employees. It is better if you can truthfully state under oath that your selections are made through a process that is truly random, with which you have never tampered. (And you still may be able to test Dooby based on reasonable suspicion.)

No. 5. Which of the following could be a legitimate basis for a "reasonable suspicion" drug test?

A. Dilated pupils

B. Unsteady gait

C. Unusually slow reaction times

D. Slurred speech

E. Reports from other employees that the employee is using illegal drugs

F. Anonymous letter or hotline call reporting that the employee is using illegal drugs

G. All of the above

ANSWER: G. The key here is "could be," meaning "maybe." Dilated pupils, unsteady gait, slow reaction times, and slurred speech could be caused by a disability or medication, rather than use of illegal drugs. However, in an employee who doesn't usually exhibit these symptoms, they could be signs that the employee is impaired by drugs or alcohol. E and F can be legitimate reasons for requiring an employee to undergo a drug test, but make sure the rumors are credible, and do your best to independently verify before you take action.

This is what we call "foreshadowing."

No. 6. True or false: Alcohol is a drug, too, so employers ought to randomly test employees for use of alcohol as well as illegal drugs.

A. True.

B. False.

ANSWER: B. Drinking or being under the influence of alcohol while on the job is bad (exceptions for professional wine tasters and the office holiday party), but you can't usually conduct "no-cause" alcohol testing. Remember when I said that testing for illegal drug use is not a "medical examination" within the meaning of the ADA? Well, the rules for alcohol are different. Testing for alcohol use is a "medical examination" within the meaning of the ADA. What that means is that, with limited exceptions, an employer cannot test current employees for alcohol unless the test is "job-related and consistent with business necessity."

Alcohol tests are JRACWBN if they're based on workplace accidents or reasonable suspicion, or as part of an employee's recommended post-rehabilitation. But random tests are -- random. They are not based on any type of fault or even suspicion. Therefore, random tests are not "job-related and consistent with business necessity," and random tests for alcohol violate the ADA unless they're required by another federal law, such as DOT regulations.


5-6 correct: You are a drug czar!

3-4 correct: You're safe and sober!

1-2 correct: You seem somewhat impaired. 

0 correct: Sign a last chance agreement, go to rehab, and take the quiz again.

Just kidding! Have a great Labor Day weekend! (And please party responsibly.)

Image Credits: From flickr, Creative Commons license. Baby with munchies by Melissa Gutierrez, adults with munchies by neon.love, no-alcohol sign by Harris Walker.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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