Question: Should employers drug test their workforce?

Answer:

In large part, this decision may depend on the industry and the impact (either known or suspected) that drug use is having on the business.  Drug abuse is a growing challenge in American businesses, particularly due to misuse of pain relievers.  According to the National Safety Council, healthcare costs for employees who misuse or abuse prescription drugs are three times higher than for an average employee.

Dealing with drug use and deciding on whether to use drug testing in the workplace can be difficult but, as a baseline, employers always have a right to prohibit employees from being impaired at work. For manufacturers, impairment at work can be particularly risky.  Inattention to detail or one wrong move can lead to catastrophic injuries.  In an office environment, drug use may negatively impact attendance and productivity, but is less likely to create a danger to the drug users or their colleagues.  By contrast, with workforces who regularly drive for business (such as trucking companies or businesses with outside salespeople), drug use can create a danger both to the employee and others on the road.

The decision whether to use drug testing in the workplace is not getting any easier.  For example, medicinal marijuana use is now legal in 29 states and the District of Columbia. So what do companies do: drug test but not test for marijuana or, test for it, but do not terminate if the employee has permission for medicinal marijuana use?  This is not so simple. Employers have no control over what time of day an employee may use medicinal marijuana or prescription drugs.  Companies may need to decide if they want to curb drug use altogether or simply address impairment at work.  If the latter, this can be tough because drug testing  may not be able to make these type of distinctions.

One way to curb drug abuse in the workplace is to use random drug testing,  While job applicants may be able to clean up their act in order to pass a pre-employment drug test, random drug testing serves as an ongoing deterrent. If employees know that the Company has retained a third-party to (1) select employees at random on a regular basis (such as monthly), and (2) conduct the tests, then employees may be more inclined to stay clean or avoid being impaired during working hours.

Employers who decide to drug test need to be prepared to follow through on the drug test results.  This can be challenging if, for example, a random drug test uncovers drug use in a high performing employee, whose drug use was not affecting productivity. Whether or not a business decides to drug test, employers should consider enacting clear company drug policies (either zero tolerance or something less stringent), training supervisors to identify signs of drug abuse, and using employee assistance programs (EAP) to help address these issues in the workplace.

About the Author:  Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.

 

 

Question: Is it unlawful to make hiring decisions based on an applicant’s looks?

Answer:

No, discriminating based on a person’s appearance generally is not unlawful, but it is not a good hiring practice.  NBC recently learned this the hard way when it was sued by a former employee who brought claims against NBC for disability discrimination and sexual harassment.  The employee included allegations in the lawsuit that “When she was first contacted by a recruiter for the job with NBC, she was told NBC specifically asked for good-looking employees,” and that “She was therefore asked to show her Facebook/Instagram profile to NBC before she could be interviewed.” (See Stephanie Belanger v. NBC Universal LLC, filed this summer in New York state court.)

While employment discrimination based on an applicant’s attractiveness is not illegal on its face under current federal or state law, hiring decisions based on looks could implicate other types of discrimination, such as age, disability, sex, race, national origin or religion.  For example, consider what you may learn or infer about these attractive people from a photograph:

In addition, be aware that some local laws, such as the Washington DC Human Rights Act, prevent discrimination based on personal appearance.

Aside from potential legal risks, you also may not want to be known as the company with the (actual or perceived) anti-ugly policy or, as a Panera franchisee faced in litigation a few years ago, a company that prohibits “black, fat or ugly” people from working in public-facing positions.  In limited circumstances (think fashion or Hollywood), appearance standards may be a bona fide occupational qualification.  However, in most industries, companies should avoid focusing on an applicant’s appearance and stick to hiring the most qualified person for the job.

About the Author:  Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.