HR Solutions

SHRM's knowledge advisors answer common HR questions.

By Margaret Fiester, SPHR-CA and Lesa Albright, SPHR-CA Nov 1, 2014

1114-Cover.gifCan companies bar job applicants who fail drug tests from future employment?

No. A company that implements such a policy would be violating the federal Americans with Disabilities Act (ADA), which prohibits employers from denying someone future employment based on that person’s past failure of a drug test.

Recovering addicts who are no longer abusing drugs are protected from discrimination based on their past drug addiction, according to the U.S. Equal Employment Opportunity Commission (EEOC).

That safeguard is granted to people who are receiving treatment for drug addiction or those who have been rehabilitated successfully.

So, an employer subject to the ADA shouldn’t have a policy stating that employees who fail a drug test will not be eligible for rehire, nor should it apply such a restriction without a formal policy.

However, the ADA does allow employers to test employees and job applicants for illegal drugs to ensure a drug-free workplace. Companies have the right to discharge or deny employment to those who currently engage in illegal drug use.

That means if an individual tests positive on a drug test, he or she is considered a current drug user under the ADA, justifying an employer’s reasonable belief that involvement with drugs is an ongoing problem.

“An applicant or employee who tests positive for an illegal drug cannot immediately enter a drug rehabilitation program and seek to avoid the possibility of discipline or termination … ” according to the EEOC guidance.

“A person who tests positive for illegal use of drugs is not entitled to the protection that may be available to former users who have been or are in rehabilitation,” the EEOC guidance states.

To ensure that drug use is not recurring, HR professionals may want to request evidence that an individual is participating in a drug rehabilitation program or request the results of another drug test.

As with other disabilities, an individual who claims that he or she was discriminated against because of past or perceived illegal-drug addiction may be asked to prove that he or she has a record of, or is regarded as having, an addiction to drugs.

The ADA protections also apply to recovering alcoholics.

—Margaret Fiester, SPHR-CA

Do nonexempt employees need to be paid for travel time as a passenger or a driver?

Usually. The federal Fair Labor Standards Act travel-time regulations include a provision that has confused many employers, leading them to mistakenly believe that nonexempt employees don’t have to be paid for their time spent riding as passengers.

In reality, there are only a few instances when this is the case.

The oft-confused provision states: “As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.”

Although it clearly states that travel time “outside of regular working hours” doesn’t have to be paid, in fact the only travel time as a passenger that is not compensable for nonexempt employees is:

Meal breaks of 20 minutes or longer during the travel time.

Travel to overnight stays when it occurs outside of the employee’s normal work schedule, regardless of the day of the week, and when no work is being performed while traveling.

For example, an employee who usually works 9 a.m. to 5 p.m. doesn’t have to be compensated for travel from 5 p.m. to 7 p.m.—unless he or she responded to work e-mails or performed other work during that time.

As for drivers, they must be paid for any driving done at the direction of the employer. Therefore, all driving in a day’s work—whether traveling to another city for a one-day assignment, taking oneself or one’s colleagues to an overnight stay, or just driving around the area—must all be paid time.

However, when an employee is traveling to an overnight stay and has the option of using public transportation, the employer has a choice.

The company can either pay for all time spent in travel or only the travel time that occurs during normal work hours, regardless of the day of the week when the travel occurs.

If an employee voluntarily chooses to drive others, his or her time for travel outside the normal work hours doesn’t have to be paid.

Some states have travel-time regulations that are more generous than the federal requirements. Employers must comply with both.

—Lesa Albright, SPHR-CA, GPHR

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