Employee Drug Testing

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an employer may test but on how the test is done.

For preemployment screening, the ADA requires that medical exams not be done before the applicant has received a conditional offer of employment, but it specifically excludes drug tests. However, many companies hoping to avoid defamation suits retain a medical review officer to examine test results and possibly talk with the person concerned, to see if there's an innocent explanation for a positive test result. In some interpretations, that turns a drug test into a medical exam. "Prudence dictates extending a conditional offer," Segal says. "So does common sense. There is no reason to incur the cost and concomitant risk of a test if the applicant is not otherwise qualified."

Segal advises employers to conduct the test immediately after making the conditional offer, so the applicant doesn't have enough time to eliminate drugs from his system. Then wait to begin employment until you receive the negative report. "It's easier to keep an ...

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