Post Offer Drug Testing

System · June 2002

I have a question that has recently come up concerning post offer drug testing. Is it OK to drug test an applicant after a contingent offer of employment has been made but not yet accepted? In other words, an applicant states that they are not comfortable with the possibility of a false negative on the drug test and they do not want to accept the offer until after the results. Can we legally go ahead and test? I know this applicant is possibly throwing up some red flags but I am more interested in what we can legally do at this point.

Don D · June 2002

Yes, you can require the drug screen at any point in the process, with or without an acceptance. A drug test is legally not considered a medical examination. There is no FEDERAL prohibition for drug screening an applicant post or pre-offer. It's generally a financial consideration for the company - you don't want to be spending money for drug screens until you're far enough along in the process to be at the point of hire almost. Typically, the employee receives a drug screen and physical at the same time and the physical is prohibited by the ADA pre-offer. The ADA doesn't say anything about whether or not the offer is accepted, just says it has to have been made. I would not proceed with anybody who got off into a discussion of false positives. What's the value to the applicant of hesitating on accepting the offer. Acceptance of an offer is not a contract to come to work for you. The post offer regulations protect the applicant anyway, not the employer. There's no direct benefit to you in testing them before or after the offer or acceptance.

Margaret Morford · June 2002

While I believe you can test after you make the offer, but before they accept, you do not want to test anyone before you make the offer. When the employees are are tested, the lab will ask them if they are on any medication. The lab is your agent (acting on your behalf in administering the test). An agent may not do anything on a company's behalf that the company couldn't do itself. You couldn't ask that question prior to making the offer, so your lab can't either.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Don D · June 2002

The places we use that do drug screens do not ask them if they are on any medication. But, that question IS asked in the physical exam phase. Only when/if someone tests positive does the MRO inquire as to whether he/she is taking any medication that would have produced a positive. But, I certainly agree that drug screens should not be done pre-offer. The question, though, was should she be tested post offer but prior to acceptance. I don't see any violation in doing that.

TomG · June 2002

I agree with Don D. Why would you even consider hiring someone who is concerned about the possibility of a false postive result before the test is taken? It seem ot me this person is concerned that his/her system may not be completely cleansed of illegal drugs. Save yourself some time and money and withdraw the offer and reopen the search.

Post Offer Drug Testing

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