A drug test consent form is a document signed by an employee authorizing a laboratory to take a sample from them to test for illegal drugs or alcohol and to release the results to their employer.
Employee drug or alcohol use can have serious implications for employers. In the US, an employee with a substance use disorder is three to four times more likely to be involved in a workplace accident. These issues can also cost employers between $8,255 and $14,374 each year in terms of turnover, absenteeism, and health care costs.
Many employers use drug and alcohol testing as a deterrent to ensure a safe environment for employees, customers, and clients. Testing is an especially useful compliance measure in industries where people or property would be placed at risk if an employee was affected by drugs while at work.
Drug testing can also be a pillar of a drug-free workplace program that aims to assist and support employees with substance abuse disorders.
However, it’s also important to understand the legal framework around drug testing, including how and when to use a drug test consent form. The bottom line is that you should never test an employee without their express informed consent.
When should you get consent to drug test employees?
You must seek an individual’s consent before conducting any drug or alcohol testing. This includes pre-employment testing of potential employees, as well as random, routine, and incident-based testing of current employees.
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When can you drug test employees?
The specific laws around when you can and can’t test employees for illegal drugs or alcohol, as well as the relevant procedures, vary between jurisdictions. For example, in the US, there’s a suite of laws and regulations at the local, state, and federal levels, including the Americans with Disabilities Act of 1990 and the National Labor Relations Act of 1935.
It’s important to get legal advice relevant to your organization’s circumstances before conducting any drug or alcohol test.
With this in mind, here’s a rundown of different circumstances in which drug testing might be used for workplace purposes.
A drug and alcohol test can be a condition of an offer of employment. However, it’s important to only test once a job offer has been made, rather than screening all potential candidates as part of the interview process. In some jurisdictions, blanket testing like this is illegal.
It’s best to clearly communicate to potential candidates that drug screening is a feature of your recruitment process ahead of time. You can note this in the job advertisement, application form, or both.
To avoid any suggestion of discrimination, you should test every candidate who is offered the same or similar role.
Many employers run randomized drug and alcohol tests. However, this testing must be truly random. It shouldn’t be conducted in a way that could be seen to be singling out a specific employee or group of employees.
You can also test all employees for illegal drugs and alcohol at regular intervals, for example, during their annual physical examination. If you take this approach, make sure you notify employees in advance that this is company policy.
After an incident
If there’s a suggestion that drugs or alcohol may have contributed to a workplace incident, you still must seek consent to test the employees involved. This is especially relevant for insurance and worker’s compensation purposes.
Based on a reasonable suspicion
You can also test an employee if you have a reasonable suspicion that they’re under the influence of an illegal drug or alcohol in the workplace. For it to be reasonable, your suspicion must be based on some concrete evidence, such as erratic behavior, signs of drug use, or witnessed drug use in the workplace.
Do you have to use a drug test consent form?
While it’s not always a legal requirement, you should obtain consent from your employees before conducting a workplace drug or alcohol test. And even when it’s not required by law, you should always use a drug test consent form.
A consent form makes this agreement explicit. This puts employees on notice and protects you and your organization from any later criticisms, complaints, or lawsuits.
What happens if an employee refuses to sign a drug test consent form?
You cannot force an employee to take a drug or alcohol test if they refuse to sign a consent form. Doing so may lead to a civil or even criminal complaint against you and your organization.
However, you may be able to take other action against an employee for refusing to do a drug or alcohol test, including termination or the withdrawal of a job offer, depending on the relevant laws in your jurisdiction.
Drug test consent form best practices
To ensure you’re using drug test consent forms correctly, consider these tips.
- Implement a drug and alcohol policy. Among other things, this document sets out how and when you test your employees. By adapting the policy to the needs of your organization and industry, you can ensure your testing is administered fairly and in a non-discriminatory way.
- Only test when necessary. Some employees find drug and alcohol testing invasive, and required drug tests can make employees feel they’re not trusted, so approach the topic with tact and sensitivity. It’s also costly to administer drug tests. With these factors in mind, only test when necessary.
- Adapt your consent forms. Modify your drug consent forms to suit the circumstances you’re testing in—whether it’s pre-employment, random, or regular testing—as well as your business or industry’s needs. Drug consent forms should also take into account any necessary legal requirements.
What to include in a drug test consent form
Standard features of a drug consent form include the following.
- The employee’s full name and date of birth, for identification purposes
- The employee’s consent to a sample being taken and tested
- The employee’s consent to the lab releasing the test results to your organization, including positive results
- The employee’s agreement to release your organization or the lab from any legal action as a result of the test
- The employee’s signature and the date the form was signed
Drug consent forms should also include any other details required by the law in your area.
It’s essential to obtain a drug test consent form from an employee before administering any workplace drug or alcohol test, regardless of whether it’s legally required. This form can help protect you and your organization from any potential criticisms, complaints, or civil or criminal lawsuits.
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