A discussion about the legality of drug testing in the workplace

It has recommended instead that, in cases where impairment poses a risk, performance testing of the employee is justified.

As indicated above, enterprises have reportedly shared the identities of persons who test positive. Although some court decisions mention the fact that a positive drug test will not lead to the dismissal of an employee or will not be shared with law enforcement agencies as a factor supporting a testing program, by and large the courts have not expressed much concern about the consequences of positive test results.

The federal government's stance also makes an impact. Employers should make sure their policy reflects additional steps that may need to be taken to meet their obligation to consider employee rights, while guarding workplace safety.

Drug and alcohol testing in the workplace: moral, ethical and legal issues

However, workers should be aware that marijuana laws do not diminish the need for a safe, productive workplace, and that employers can expect all employees to work to the standards required for the job. Ultimately, however, the legal future of drug testing is likely to turn less on the development of new technologies than it is on widespread social attitudes.

Another workers organization representative expressed concern that in certain cases the physicians' code of conduct was not always respected and that employers were at times notified of the results of medical tests, including urine or blood screens for drugs or alcohol.

Today, THC content is nearly 13 percent, and some strains are advertised as having a THC content of around 25 percent or higher.

Pursuant to the bona fide occupation requirement of the legislation, the Canadian Human Rights Commission drug-testing policy stipulates that testing must be based on the employer's ability to demonstrate objectively that a "positive" result to the drug being screened indicates a decreased ability to perform the job safely, efficiently and reliably, that the assessment is individualized and that employees found "positive" must be reasonably Accommodated by such measures as rehabilitation or by employee assistance programmes, or be provided benefits similar to those of employees with other types of disabilities [ 15 ]pp.

Several transport accidents in which controlled substances were found on the crew, as well as reports and surveys of extensive workplace consumption and sale of drugs, have been catalysts for proceeding with workplace screening programmes [ 40 ]p.

The Supreme Court has also decided in favour of lower court decisions upholding various forms of random drug testing [ 75 ] ; [ 77 ] ; [ 78 ] ; [ 83 ]pp. Finally, the Court argued that, since railroads have long been a heavily regulated industry, their employees must expect greater intrusion. A key informant noted that, when implemented, the policy provoked a strong reaction, in view of the impact on the privacy rights and personal liberties of employees.

For example, in the United Kingdom, most companies view the "legality" issue as important, and hence are more tolerant with regard to alcohol. Canada In Canada, drug testing is not widespread [ 22 ]p. In a similar vein the Seventh Circuit Court required the Cook County Department of Corrections to limit its unannounced drug-testing program to employees with regular prisoner contact, with opportunities to smuggle drugs, or with access to firearms Taylor v.

There are several situations where this might come into play. Changing Attitudes Issues with attendance and productivity also can arise from marijuana use, and morale may be impacted.

It is virtually impossible for an "innocent" employee to be fired or blackballed because of a false positive result in a program that complies with the DHHS guidelines. The courts seem surprisingly uninterested in the empirical research bearing on these questions. Alcohol continues to be the most commonly abused substance [ 1 ] ; [ 2 ]p.

Marijuana use has been linked to an increase in job accidents and injuries, and the National Institute on Drug Abuse notes that the short-term effects of marijuana include impaired body movement, difficulty with thinking and problem-solving, memory problems, and an altered sense of time.

Because marijuana can stay in a person's system from 24 to 48 hours after casual use and up to a month if a person is a chronic user, the question can arise of whether or not a person's job performance is still impacted by drug use if a person has not used it recently.

Alcohol and drug abuse cases in arbitration. Perhaps the most significant indicator in Skinner of how the Court might rule in future cases was its assessment of the government's interests served by testing. It also permitted the testing of employees in other positions: Although there are a few states that legislatively protect certain workers from drug testing, most laws and regulations that regulate drug testing are important not for restricting who may be tested but for mandating testing in certain situations, for requiring protections against test error, and for restricting the consequences of positive findings.

This approach towards rules of behaviour, coupled with the prevailing mood in response to the 'drug crisis" and the above-mentioned regulations of the United States Department of Transportation, has had a significant impact on the overseas subsidiaries of multinational corporations as witnessed by attempts to impose similar policies.

The stigma behind marijuana use may also make employers wary of the issue, as illustrated by the name of a recent session held by the Society of Human Resource Management: Along with Washington, D. Von Raab U. The ethical and legal responses in each country have developed along the lines of the unique national circumstances of that country.

The philosophical gap between the company and the prevailing standards in the Netherlands is exemplified by the statements of a management spokesperson " We can only recount what as of this writing seem to be the constraints that the law places on workplace drug-testing programs.

To give just one example, preemployment screening is ordinarily allowed without a strong nexus between revealed drug use and likely job performance. However, some newer medical marijuana laws offer additional employee protections, and these laws have not yet been tested in court.

A discussion about the legality of drug testing in the workplace

Pre-employment drug and alcohol screening Most testing is carried out at the pre -employment stage and is intended to screen out potential drug users before they join the enterprise [ 30 ]p.

If such quick-and-dirty drug testing becomes widespread, it may provoke another round of restrictive state statutes, not to supersede federal guidelines, but to extend them to a wider range of workplaces.

They felt that random testing was offensive to the privacy of the individual and they rejected its introduction. This amendment prohibits unreasonable searches and seizures by governmental agents and, subject to certain exceptions, limits governmental searches to those made pursuant to a warrant upon a showing of "probable cause.

The Private Sector Private businesses are not subject to the strictures of the Fourth Amendment unless their testing programs are mandated by law.

The following discussion provides information on when (and whether) a drug test may be used in the pre-employment phase. Pre-Employment Drug Testing Laws and the U.S. Supreme Court Want More Information About Drug Testing in the Workplace? Get a Free Case Review. discussion was limited to the specific facts of that case, the procedural protections that are drug testing of employees in “safety-sensitive” performance in the workplace.

possibility that death or serious physical harm could result from the accident. B The Legal Environment of Drug Testing This appendix is based on a paper commissioned by the Committee on Drug Use in the Workplace from David Wasserman of the Institute for Philosophy and Public Policy, University of Maryland, and James Jacobs of the School of Law, New York University.

in the area of drug testing, of limited effectiveness as an indicator of impairment. Drug and alcohol testing are of particular concern in the workplace, notably for those Ontario employers that have safety sensitive operations, and/or that are Policy on drug and alcohol testing.

the. rights. the. ]. The present paper contains a brief discussion of the moral, ethical and legal issues surrounding workplace drug and alcohol testing and of the way in which those issues are dealt with in five countries.

Further, because safety incentive and drug-testing programs have been established by employers for purposes of improving health and safety, discovering the causes of accidents, and discouraging drug use in the workplace, it will be very difficult for OSHA to prove the final element of its case.

A discussion about the legality of drug testing in the workplace
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An Employer’s Guide to Marijuana in the Workplace