In Focus: Failed Pre-employment Drug Tests Lead to Hiring Refugees

By Allen Smith, J.D. Mar 29, 2017

As the opioid epidemic continues and legalization of the use of marijuana spreads, more job applicants and current employees are failing drug tests than ever before. Employers face the challenge of finding new workers who can pass a drug test.

More Refugees Hired

Some employers are hiring refugees, whose usage of illegal drugs is lower than among Americans, CNN reports. (CNN)

Laws Legalizing the Use of Marijuana

Although federal law still prevents marijuana use, 28 states have passed comprehensive medical marijuana laws, and eight of them, as well as the District of Columbia, also have legalized use of the drug for adults aged 21 and older. That said, employers still can expect employees to be sober at work. (HR Magazine)

Prescription Drug Crisis

The use of opioid painkillers such as OxyContin and Percocet is at epidemic levels. Drug overdoses now exceed car crashes as the leading cause of unintentional death in the United States. (HR Magazine)

Drug Policies Are Surprisingly Uncommon

While drug use is common—affecting approximately 70 percent of U.S. employers by one estimate—only 19 percent of employers have comprehensive workplace drug policies, according to the National Safety Council. (Business Insurance)

[SHRM members-only how-to guide: How to document reasonable suspicion]

OSHA's Drug-Testing Rules Are Restrictive

A final rule from the Occupational Safety and Health Administration (OSHA) requires employers to limit post-accident drug tests to situations where drug use likely contributed to the incident and for which a drug test can accurately show impairment caused by drug use. Front-line supervisors may now have to be trained on how to recognize an impairment and determine whether drug use may have contributed to an accident, which could be difficult. Whether this OSHA rule will survive during President Donald Trump's administration is uncertain. (SHRM Online)

State Laws on Drug Testing

State laws, rather than federal law (with the exception of the Drug-Free Workplace Act of 1988), govern drug testing of applicants and employees. They generally permit drug testing but require employers to give applicants notice before the test and follow certain procedures to avoid discrimination and inaccurate samples. Some states prohibit blanket drug tests or random drug tests. Many states let employers test workers for drugs based on the reasonable suspicion that employees are under the influence. (NOLO)


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