Fema Employment

NC Pre-employment drug screening?

I've had a couple good interviews with a company. I received a call from the HR recruiter and he said - I must complete the drug screening/background check before an offer is made. I was told "there's no point in making an offer when come to find out you fail the screening." Is this legal? I've changed jobs before and it has always been, offer made/accepted - then you go do the screenings/checks.. Did this company violate NC/federal laws? Don't get me wrong, I want the job and will pass any/all tests. I've just always accepted the offer, then a couple days later do the testing/screenings..

Public Comments

1. It's legal. They're not breaking any laws. The fact that they're testing you means that you've got the job as long as you pass. The hiring company must pay for those tests therefore, they're only going to spend money on those that they think are worth. Clean up and pass the test. Good Luck!
2. An offer is an intent to hire. Screenings are voluntarily by the company as an extention of the interview. Some companies choose to make an offer before the screenings, but the majority tend to hold the offers until all such tests are completed. These offers usually are legal binding contracts and can be upheld in the court system. Who's to say you still cannot decilne an offer once the company has already invested $100 or so to pay for the screenings?
3. Quite legal. Do you have a problem saying "that should be no problem. Where do I go?"
4. Yes, it is perfectly legal and a standard practice pre-hiring. I am a NC employer and everyone that works for me has to be pre-drug screened and a background check done before I offer them a job. This is also to protect the new hire...if you test positive after I hired you...do you REALLY want to quit your current job only to get fired after 2 weeks here? People that don't do drugs shouldn't worry about silly details such as that.
5. Hi Kenny - Technically it's not illegal, but it certainly isn't advisable, either. This information comes from a legal research website that I use frequently (for paid members only or I'd provide the link.) You'll note that they recommend against sending the employee for testing until after the offer is made (contingent upon passing the test): Employers may sometimes ask individuals to take drug or alcohol tests to avoid hiring people with substance abuse problems and to deter employees from using drugs. Although employers have a legitimate interest in preventing substance abuse, their right to test for drugs and alcohol are limited by laws which: protect individuals' right to privacy, and prevent disability discrimination. Individuals do not give up all of their privacy rights when they seek employment or are on the job. So, employers may not require them to reveal personal information that unfairly invades their privacy. Instead, an employer's right to obtain information must be balanced against how much the drug and alcohol tests invade employees' privacy. Information about what is in an employee's body is usually considered personal and confidential. Personal activities that are generally performed in private and without observers (such as urination) are protected from unnecessary inspection (such as being watched by an observer.) As a result, the following types of drug testing policies are generally not recommended because they intrude too far on most employees' privacy rights: random drug testing, periodic testing, and surprise testing. Note: Still, employers are entitled to get information that is necessary for the safe and efficient operation of their business. So, random, periodic, or surprise drug testing should be used, if at all, only for certain safety related jobs. Disability Discrimination Generally, employers are not allowed to discriminate against individuals based on their disabilities as long as the individuals are able to perform their jobs. Basically, employers must focus on an individual's performance rather than on the individual's condition. So, if a test might reveal a disability or medical condition, there are restrictions on how and when employers can conduct that test. Alcohol Tests It's generally impractical for employers to test individuals for their use or abuse of alcohol. This is true because: -alcoholism is considered a disability under the discrimination laws, and -most alcohol tests are considered medical exams. Note: Employers may also be required to accommodate alcoholics' disabilities or give employees who have a drinking problem time off for rehabilitation leave. So, if employers want to test for alcohol, they must comply with the rules for drug tests and the rules for medical exams . Drug Tests Tests for illegal drugs, however, are not medical exams. And, the current illegal use of drugs is not a disability. So, the main concern when drug testing is the employees' right to privacy, rather than disability discrimination. But, drug tests are often given at the same time as medical exams, in which case the disability discrimination rules for medical exams must be followed. GUIDELINES TO AVOID LIABILITY IN DRUG TESTING For employers to help avoid liability from drug testing, they should: establish a written drug-testing policy that includes provisions for: who is tested, when tests are conducted, which tests are conducted, procedures for test taking, and security of test samples. require applicants and pre-promotional employees to take drug tests only after employers have made them job offers that are conditioned on them passing the test; limit applicant, pre-promotional, and safety related testing to jobs that are already subject to medical exams, and then do the drug tests as part of those medical exams; apply their drug-testing policy consistently; give written notice before conducting tests; have all test-takers sign authorizations that state that they agree to comply with the testing policy and take a drug test, and that employers may receive and use their test results. If individuals are not willing to give employers a written authorization for collecting or using information about themselves, employers should consult an employment lawyer before making any job or benefit decision based on information that employers do obtain. ask for (but do not require) a waiver that releases employers from liability for the testing and information obtained; Note: The waiver must be understood and signed voluntarily by each individual. To be effective, employers must not imply that applicants or employees will be penalized if they refuse to sign the waiver. protect individuals' privacy by avoiding tests or test conditions that are more intrusive than necessary; Example: Ed had his employees give urine samples while being watched by a nurse. However, if Ed had the nurse monitor the employees by listening rather than by watching, the testing would be less intrusive into his employees' privacy and more likely legal. use a reliable, certified drug testing laboratory or service; confirm tests that indicate the presence of drugs by requiring a second test before acting on the information; and Note: Employers may also give the individual an opportunity to submit an independent evaluation or new specimen. keep test results strictly confidential. Note: Test results and other medical information must be kept separate from other personnel files. Employers must not disclose positive test results to other employees (not even supervisors) unless they "need to know." Even if a test indicates that an individual has taken drugs, employers should not jump to conclusions. For instance, an individual may be taking drugs for a disability that requires employers to provide reasonable accommodation. While employers are not required to accommodate current, illegal drug use, it may be necessary for employers to give unpaid leave to employees who request time off for a rehabilitation program. LEGAL CONSEQUENCES If employers violate the rules governing drug and alcohol tests, they may be sued for invasion of privacy, harassment, or discrimination, and ordered to: hire applicants or reinstate employees; restore lost pay, benefits, and seniority; pay for other losses, including legal costs; pay administrative fines or punitive damages; or provide any other necessary and reasonable accommodation. ADDITIONAL POINTS If employers take action based on an individual's drug or alcohol test, they should keep the results as evidence. Basically, employers should keep the information until the statute of limitations expires for the applicant or former employee to sue them. A recent law makes drug dealers liable for the economic harm caused by their illegal business. So, if employers can identify an individual whose drug dealing caused financial losses for their business (such as the costs of rehabilitation or medical treatments for employees, absenteeism, and lost productivity), employers may sue the drug dealer for these losses. And, employers may also be entitled to collect their attorney's fees and punitive damages. Besides the restrictions on drug and alcohol tests, there are also limits on the permissible questions employers may ask employees about drug or alcohol use.