September 2005

Be careful where you dig

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Drug tests and background checks present some legal hurdles

by Victoria L. Donati and Jason C. Kim
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Pre-employment screening, in the form of medical tests, drug tests and background checks, often provides valuable information to help employers find the right matches for their available positions while minimizing costs associated with high turnover and claims for negligence in hiring. But as helpful as such screening practices may be, the information collected is heavily regulated by federal, state and local laws, which may create legal pitfalls for you. We will explore the proper procedures to avoid such risks from a federal law compliance perspective. Some local laws and state laws may differ from federal law requirements; be sure to check your local and state laws to ensure compliance.

Pre-employment tests

Pre-employment medical tests and drug tests are regulated so as not to provide employers with unnecessary information about conditions that may be disabilities and to limit intrusions on applicants' privacy rights. The Americans with Disabilities Act (ADA), along with many state fair employment and/or human rights laws, regulate the manner in which and extent to which such tests may be administered to ensure a workplace free of disability discrimination.

Before employment begins, you may ask all individuals applying for a particular position about their abilities to perform certain job functions with or without reasonable accommodation. You also may require pre-employment medical or psychological tests if the following...

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