An employer under federal law is allowed to require its applicants to submit to pre-employment drug tests. Drug tests are not considered medical examinations under the Americans with Disabilities Act (“ADA”), and therefore, the employer does not need to make a conditional offer of employment before the drug test. Note that the drug tests do not include testing for alcohol. Alcohol tests are considered medical examinations and therefore require a conditional offer of employment before testing.
For the employer to deny employment to an applicant the following requirements need to be met under the Nebraska Drug and Alcohol Testing Act:
- Confirm any positive initial finding of a preliminary drug screen by a gas chromatography-mass spectrometry analysis. As a practical matter virtually all labs performing testing in Nebraska are in compliance with this requirement.
- The specimen needs to be properly refrigerated and preserved in sufficient quantity for retesting for at least 180 days.
- A written record of the chain of custody of the specimen from time of collection until the specimen is no longer needed.
- Employer may not release or disclose results of the test to public other than as required by law or by request of applicant.
A current illegal drug user does not qualify with a disability under the ADA; however, individuals who have been rehabilitated and do not currently use illegal drugs may be protected by the ADA. An employer’s pre-employment drug testing policy should be administered across the board without regard to race or any other protected characteristics under Title VII. It should be applied equally and fairly to all employees.