Masonry Magazine April 1999 Page. 25
Drug testing is often conducted to ensure workplace safety and productivity. However, it's crucial to understand the legal implications, particularly concerning discrimination based on drug test results. A person with a positive drug test result may challenge its accuracy (by alleging that he or she is "erroneously regarded" as a current illegal user of drugs). Employers should reference the regulations issued by the Equal Employment Opportunity Commission that implement these and other provisions of the ADA relating to employment discrimination.
The Federal Rehabilitation Act of 1973 contains disability discrimination prohibitions similar to those contained in the ADA that are applicable to the employment practices of federal contractors and subcontractors, federal agencies, and recipients of federal financial assistance (irrespective of the number of persons employed). The Rehabilitation Act was amended by the ADA so as to incorporate the ADA's provisions regarding drug users.
Regarding collective bargaining rights, the National Labor Relations Board ruled that, with respect to current employees, compulsory drug testing amounts to a substantial change in the terms and conditions of employment and, therefore, is a subject of mandatory bargaining under the National Labor Relations Act. Accordingly, an employer may not implement new rules or change prior policies regarding drug testing that affect current employees without first bargaining over the matter with its employees' union.
The National Labor Relations Board ruled that an employer is not required to enter into collective bargaining over a testing requirement's application to applicants for employment. It was determined that because preemployment drug testing does not vitally affect the interests of current employees, it is not within the scope of required bargaining under the National Labor Relations Act.
(Note: Unless otherwise noted, facts from this story were gathered from the U.S. Department of Labor)
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