Charging for Employment Physicals and Drug Screens

ladyzuesse

Per the Code of Virginia:

§ 40.1-28. Unlawful to require payment for medical examination as condition of employment.
It shall be unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any medical records required by the employer as a condition of employment.

My question is:
Can an employer charge an employee for costs incurred (medical exam and drug screen) if the employee does not work for a specified length of time. ie. 30 days? Or is this law applicable to any charge at any time?

Legal types help please.... and any other wise ones, of course.

I think I know the answer, but my GM wants me to "clarify the law"... don't ask, long story.

Tammy

LindaS

I am in Wisconsin and I once asked this question and was given a definitive "no" as an answer. Among other reasons the one that stuck in my mind was that this type of thing can be seen as a contract and that is not something we wanted to get into. I think it stinks especially when you look at the costs of the exams and tests and then to only have the employee work for a short period of time but when I expressed this the response I received was that I needed to do better in the selection process.

jimlegal

I agree with LindaS, NO you cannot charge.

ladyzuesse

[font size="1" color="#FF0000"]LAST EDITED ON 03-27-03 AT 12:34PM (CST)[/font][p]Tammy

LindaS

Explain to them that the person HAS to go through these exams, and pass, prior to their being allowed to start. This IS a condition of employment, not something the employee has a choice in. Use a drug test for example, the employee is REQUIRED to take this test, and have a negative result, before they can begin employment. Without this test they cannot begin so this is a condition of employment. It can't get much plainer than that.

Good Luck!!

blw

Tammy,
I don't know what type of testing, and if it would be of any use the the employee elsewhere, but here is what we do. We hire childcare workers and train them in FA/CPR. We don't give them their cards until after 30 days of employment. If they leave before 30 days and want their cards to prove their certified, they have to buy them for $25. We've had one employee take advantage of it in 1 1/2 years, but every dollar helps! Barbara

ladyzuesse

This is specifically pre-employment physical and drug screen so there is nothing to withhold, except possibly a DOT medcert from a driver who needs one (very few do, they usually have a valid medcert card), but we aren't "there" at the clinic when the cards are issued to the drivers, so it would be difficult at best.

I think it would be to our advantage to recoup the cost, but I believe VA law says otherwise - now just to convice the PTB of this.

ladyzuesse
aka
Tammy Colson

Cindy Hanna

We also pay for pre-employment physicals but are working on re-cooping some money if the new hire does not stay for 30 days.

Although it is a requirement for most of our employees to have a valid CDL the employee pays for his or her DOT physical to maintain the CDL when the federal med card expires which is every 1 to 2 years.

POPEYE

I agree with the NO responses. Forget laws, CEO's desires and bottom line dollars. Think about the impact that one "ex-EE" could have on future recruitment if the word was to spread about testing charges. My opinion is to charge this to the cost of doing business.

SMace

How do you plan to recoup the money?

Are you going to make someone pay if you terminate them before 30 days? If you say no, you will be treating someone who quits and someone you terminate differently. Could that alter your employment at will status? I don't know. But it's something to think about.

Stephen

ladyzuesse

[font size="1" color="#FF0000"]LAST EDITED ON 03-27-03 AT 12:35PM (CST)[/font][p]Practice has been to charge or recoup from final pay (or go after them with a warrent in deed) if they quit within 30 days. We do not charge those we terminate within 30 days because the logic says that it is our "no fit", not theirs, and I agree, it does conflict with the "at will" status in Virginia.


ladyzuesse
aka
Tammy Colson

LindaS

Do you have employees sign an authorization allowing this deduction? My understanding of wage and hour law is that you CANNOT deduct ANYTHING (other than taxes) from an employee's check without authorization of some kind. Maybe this is state specific but I know here in Wisconsin we cannot engage in this practice.

ladyzuesse

[font size="1" color="#FF0000"]LAST EDITED ON 03-27-03 AT 12:34PM (CST)[/font][p]Yes, every employee we have sent for screening has signed a notice that this will happen - but with this new law (not new on the books, but new to my eyes) I don't think it much matters - it's an illegal practice.

ladyzuesse
aka
Tammy Colson

David Nagle VA

As the editor of the Virginia Employment Law Letter, I'm sorry that I didn't see your inquiry sooner, but all those who have responded so far are correct. Under the Virginia statute, you cannot pass the cost along to the applicant/ employee. Furthermore, responding to one of your follow-up comments, be aware that Va. Code 40.1-29 severely limits the deductions which may be made from an employee's pay. Even though you get the individuals to sign an authorization form, a deduction like this is probably constitutes an "involuntary" authorization, which isn't any good, so the action would constitute a separate violation of the Virginia Wage Act. Improper deductions under the act can constitute criminal offenses--they are not to be taken lightly. Look in the April issue of the VELL coming out next week, as I have written a short reminder article on the state wage payment law. Hope this helps. David E. Nagle

Leslie

To the pre-employment drug test (few of our jobs require pre-employment physicals) add a charge of $250 for gaming certification/license. We have them sign reimbursement paperwork for the cert/license - at five bi-weekly pay cycles of $50. If they quit in 30 days or less, we're sunk. It really adds up.

ladyzuesse

Thanks David, that was just wnat I needed to change it... amazing sometimes isn't it.

Tammy

Theresa Gegen TX

These laws exist in several states, and as more employers try to recoup these types of costs, more state legislatures will pass these laws.

The law is pretty clear, you cannot charge.

Good Luck!

valentine

Because it is pre-employment, we don't charge the prospective employee. We pay for the drug screen and the physical, if needed. We encourage them to go to their own doctor but if they don't have one, then we pick up the cost.

I don't think there is a law in MA that says you can't pass on the cost to the employee thought??

kauaigrl48

We are a manufacturing company in MI, I am shocked to read this -- We do charge new employees for drug test and physicals and they do sign authorization forms -the only difference is that we reimburse them after 90 days. Are we breaking the law?

Crout

The Feds don't get involved with this sort of thing, so every State is slightly different. In PA, for example, by regulation every one of our new hires must have a pre-employment physical, which they pay for if they want to be employed. Check your State wage law for guidance.

kauaigrl48

Thanks, what do I look for under the state law?

Crout

It's usually called The Wage Act, or Wage Payment Act, or something like that.

HR in Okla

In Oklahoma, if the employer requires the physical, the employer must pay. Also, if the employee requests a copy of the physical report within 30 days, you must give it to them. We've looked and looked for ways to recoup this cost, but legally there aren't any.

Pork

TAMMY: Here is what we do! In our letter of offer we have a statement that tells them they are going to take a drug test that cost us $35.00 which we pay for, however, should you leave us prior to 90 days you agree to repay us for the expense out of the last pay check. if we are given sufficient warning this has happened we take it back based on the employees agreement as a condition of employment. the truck drivers are required to have a DOT physical exam which cost $135.00 and we do the same with them, but we change the time element to 6 months. i have not had one person refuse to sign no pay. In fact it has made a couple of the truck drivers from jumping to another trucking firm when they may have gotten a better offer after they have committed to us. Go for it! you don't have to take it back and on some cases we had no choice they were gone before we got the word. pork

ladyzuesse

It appears that David's words of wisdom convinced my two bosses that we could no longer go after former employees for this cost. "it isn't worth the risk".

I just wish I hadn't needed to find a man's opinion to present in order for it to happen. x:-(

Tammy