Pre-Employment Drug and Alcohol Testing – Is it Legal?

One of the first questions an employer should ask itself prior to commencing pre-employment Drug and Alcohol testing should be:

Is it a BFOR – a bona fide occupational requirement?

In other words, it should be a standard rule (for all employees) that is an essential requirement in order to perform the duties of the job. In order for it to be considered a BFOR, the employer must establish that any changes or accommodation to the standard would create undue hardship on the organization.

The following steps need to be established in order to determine if it is a BFOR:

  • Rational connection – Is the standard rule instituted for a function that is rationally connected to the performance of the job?
  • Good faith – Is this rule implemented in good faith because it was deemed to be necessary for completion of appropriate work related functions?
  • Reasonable necessity – Is the rule necessary?

Here are some questions that you may want to consider when deciding on Pre-Employment Drug and Alcohol testing:

  • Is this a safety sensitive position, and will it impact the productivity and effectiveness of the individual?
  • Have you notified applicants via the job posting that they will be subjected to drug and alcohol testing?

Employment related examinations must be limited to accessing the person’s ability to perform the key duties of the job. It must be demonstrated that the pre-employment testing provides an adequate evaluation of the applicant’s ability to complete the job requirements.

Pre-employment testing will in no way predict whether the individual will be impaired while performing their job duties. For example, a drug test cannot measure present impairment while an alcohol test can.

There are other considerations that must to be taken into account when determining the need for pre-employment screening. Your PEO HR Team will be happy to assist you with this determination.

Written By: Leanne Suitor, RPR CHRP

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