Articles Posted in Drug Testing

guestblogger.jpgToday, we have a guest blogger at The Employer Handbook. It’s Melissa Kluska. Melissa currently writes for St. Jude Retreats, a non 12 step alternative to traditional alcohol and drug rehab. As well as writing for St. Jude’s, Melissa enjoys blogging about health and relationships.

(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).

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Thumbnail image for DOLlogo.pngOrdinarily, I’m reluctant to recommend online modules that help HR professionals create workplace policies.

Like the one I used to create a Borat Workplace Dress Code. Maybe it was the alcohol talking, but I was certain that the one-piece, over-the-shoulder, male swimsuits wouldn’t create a donning and doffing FLSA issue.

Hey, this post got weird quick. Didn’t it?

And speaking of inebriants…

Yesterday, in the course of noodling around for some fodder to update a Drug-Free Workplace Policy, I found this site from the U.S. Department of Labor, which walks employers through some of the issues to be considered when drafting a policy. It then allows employer to actually building a policy from scratch using DOL-suggested language.

The DOL’s policy builder is a nice platform to get you started. Just look out for some potential pitfalls such as asking employees about prescription and over-the-counter drugs. If you get too nosy, the EEOC may come calling. To be safe, have the finished product reviewed by employment-law counsel before implementation.

weedleaf.jpgAccording to a federal appellate court from California, a state that has embraced marijuana as an effective treatment for individuals who face debilitating pain, an employer may discriminate against an employee because of the employee’s use of marijuana. This holds true whether the marijuana use is recreational or medicinal, because the Americans with Disabilities Act does not protect illegal drug use.

However, there are instances in which the ADA does protect medical-marijuana users. For example, an employee who uses medical marijuana to treat glaucoma may be discriminated against because of the employee’s marijuana use, but not the glaucoma. Assuming that: (a) the glaucoma is a disability; (b) the employee can perform essential job functions with or without a reasonable accommodation; and (c) and the employer takes an adverse employment action against the employee because of the glaucoma, the employer has violated the ADA. 

For more on the CA case, check out Robin Shea’s post at the Employment and Labor Insider. For more on the interplay between medical-marijuana use and state disability-discrimination laws, check out this post I did last year.

And rather than risk offending anyone with a drug-related tune — Me? Offend my readers? Thursdays. Never. — I’ll play a song that surely ranks number one this week on the Brooks Meyer Countdown. My two-and-three-quarter-year-old readers will love it!

Empty Drug Testphoto © 2008 Micah Baldwin | more info (via: Wylio)Stop me if you’ve heard this one before:

  • Job candidate is told that any job offer is contingent upon passing a drug test.
  • On d-day, job candidate bolts from the drug-testing facility, claiming that he has trouble in confined spaces.
  • No drug test means that job candidate is disqualified from the position.
  • Job candidate sues claiming a violation of the Americans with Disabilities Act for failure to accommodate.

Folks, I couldn’t make this stuff up if I tried. Just another day in the life of an employment lawyer.

After you hit the jump, you’ll find out whether the job candidate prevailed…

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“I know you don’t smoke weed, I know this; but I’m gonna get you high today, ’cause it’s Friday; you ain’t got no job… and you ain’t got sh*t to do.” – Smokey from Friday (1995).


Back in 1995, when Smokey was trying to convince his buddy Craig to get high, California had yet to decriminalize marijuana for medical use. Now, a number of states have legalized medical marijuana.

But what happens when medical marijuana use results in a positive drug test at work? Is the company allowed to fire that employee?

Find out, after the jump.

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