January-15-09

Drug Testing

Question: Our company wants to implement a drug testing program for applicants to certain sensitive positions. Are we required to also test current employees in these positions?

TGL Response: The simple answer is no, you do not have to institute a post-employment program if you institute a pre-employment testing/screening program. The contours of the law regarding employee drug testing, particularly under the Massachusetts Privacy Statute, are subject to change and somewhat untested, however, and you should seek legal advice prior to implementing a testing program that affects current employees. As for pre-employment inquiries, to avoid claims of disparate treatment (discrimination) you should ensure that all applicants or all applicants in the same employment category are tested. For cost and administrative considerations, we suggest testing only after you have made a conditional offer of employment - an offer contingent upon a negative drug test. Finally, we advise clients who test applicants to add to their emplyoment applcations a clear acknowledgement to be signed by the applicant affirming his or her understanding that he or she may be subject to pre-employment drug screening during the application process.