Holland & Hart - Employers' Lawyers

 

 

Question: Can we mandate a drug screening upon hire for some job types and not others?

Answer: For some categories of heavily regulated jobs, such as those overseen by the U.S. Department of Transportation (e.g., over-the-road truck drivers, rail operators), drug screening as a condition of employment is mandatory by law. So, distinguishing between those categories of jobs and others is essentially necessary.

In other situations where drug screening for new applicants isn’t required by law, Colorado law doesn’t appear to require an “all-or-nothing” type of drug screening policy—i.e., either candidates for all available jobs must be screened, or no candidates may be screened. If you choose to impose drug screening as a condition of employment for a particular job or job category, however, then you must apply the screening uniformly across all applicants.

You can’t choose to screen some candidates for a particular job or job category and not others because such a practice would likely draw discrimination allegations.

Moreover, you should ensure your drug screening practices don’t unreasonably invade candidates’ privacy rights (e.g., requiring them to urinate in front of others) or rule out applicants who take legally prescribed medications (apart from medical marijuana) for recognized disabilities under the Americans with Disabilities Act (ADA).

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