Key takeaways:

• What does the ADA say about drug use? In interviews, employers can only ask candidates if they use illegal drugs and if they’re able to perform all required job duties. After a job offer is extended, a medical examination can be required as long as it is given to everyone at a similar level.
• What if a candidate tests positive for THC? The ADA doesn’t protect employees regarding marijuana use since it is still illegal on the federal level. However, you may have to comply with state laws if the drug is legal in your state.

Conducting a drug screening is a common step in the hiring process. How you navigate these screenings can be complicated. Different states have different laws in place about drug tests, and the Americans with Disabilities Act (ADA) prohibits certain medical questions about lawful drugs you may want to ask in interviews.

A common issue for employers is seeing THC on a pre-hire drug screen. You may wonder what you’re able to ask the job candidate about the result since there are laws surrounding these and similar practices. Here is an overview of what the ADA allows and doesn’t allow, what you can do in this situation and other important considerations about drug testing.

The ADA outlines requirements that employers must follow to avoid discrimination against people with disabilities. Provisions surrounding the use of alcohol, illegal drugs and unlawful use of legal drugs apply to each stage of the employment process:

• Application and job interview
• The time between a job offer and starting work
• On the job

Employers cannot discriminate against candidates due to a disability. The ADA prohibits all disability-related questions, including those related to the existence, nature or severity of a disability. For instance, you cannot ask a candidate whether they are taking prescription drugs or whether they have ever been addicted to certain substances, like alcohol, opioids or other drugs.

The ADA also prohibits employers from asking about past additions to illegal drugs. However, it is permissible for them to ask about the use of alcohol or illegal drugs since that question on its own doesn’t reveal a disability. The questions must not be trying to get at whether the candidate has alcoholism since that is a protected ADA disability.

In the interviewing stage, however, it is unlawful to ask about the extent or frequency of use since they could reveal an addiction. You can only ask applicants if they’re using illegal drugs and if they’re able to perform all necessary job duties.

In the stage after the job is offered but the candidate hasn’t yet started, the employer is allowed to ask the extent of alcohol or drug use or if they have an addiction to alcohol or drugs. If the employer asks about a disability, such as an addiction, the candidate must disclose it. If they are not asked, they do not have to disclose it.

According to the ADA National Network, the ADA doesn’t offer protection for employees if an employer makes a decision against them based on their use of medical marijuana. This is because medical marijuana is still illegal under federal law.

However, some state laws have made medical and/or recreational use of marijuana legal, and so if you are in such a state, such as Florida, you may need to offer a reasonable accommodation under any applicable disability discrimination laws.

So, if you are an employer and you required a drug test of a new hire and it comes back positive for THC, your next steps depend on the state you live in. If there is no protection in place in your state and marijuana use is illegal, you are usually able to make decisions about a candidate based on their use of the drug.

Navigating ADA requirements can be complicated and challenging. However, knowing what’s required of you related to drug use and screening is crucial as an employer. Here are some additional considerations and tips:

Practice consistency

Always show consistency in your questions and testing practices. You should never pick and choose who to drug test and who not to drug test. This could quickly lead to discrimination claims. Make sure every employee and candidate is treated equally.

Always stay up to date on laws

Employment laws are always changing. It is important that you follow changes closely so that you know what you can and cannot ask in interviews, how to handle pre-employment inquiries and factors you can legally consider when selecting the right hire. You also need to know whether your state has made marijuana use legal. Follow related laws at the federal level that could change in the future.

Know restrictions on medical examinations

Employers are allowed to ask employees to take a medical examination before they start a job. Note that you will not get access to the employee’s full medical records, only the result of the exam in question. Examinations must also be required for all employees in the same job category.

When you can ask questions

During the interview process, you cannot ask potential new hires any questions about their history of prescribed drug use. You can only ask them if they can perform all the job duties listed in the job description. Only after a candidate is offered a job can you ask about their use of prescribed drugs and ask them to take a drug test. You can ask these questions even if they’re unrelated to the job’s function.

Adhere to confidentiality laws

Note that information related to an employee’s health, including drug use, cannot be shared with a worker’s supervisor unless there are work-related restrictions because of the drug use. Otherwise, employers have to follow privacy and confidentiality laws.

Looking for information from third parties

Employers cannot ask other parties, like a former employer or state agency, for information about a candidate that couldn’t be requested directly from the candidate.

Employment laws aren’t always easy to break down. When you need help putting best practices in place that will keep you compliant, work with the team at StaffLink Outsourcing. We can help with HR management, payroll administration, benefits management and more so that you can align and educate your employees on your policies, procedures and expectations.

Request a proposal or contact us at (954) 423-8262 for more information.