Is Drug/Alcohol Testing Legal?

Human rights laws ban employers from discriminating on the basis of a disability. Drug addiction and alcoholism are regarded as a “disability” under the law. This is the primary reason drug and alcohol testing is so problematic for employers. Yet, sometimes testing is legal. Why?

When Drug/Alcohol Testing Is Legal

The reason testing is sometimes legal and sometimes illegal under human rights has to do with a rule known as the bona fide occupational requirement (or BFOR).

We know, for instance, that blindness is a disability. Yet, we also know that a taxi company that refuses to hire a blind person as a driver isn’t guilty of discrimination. The way we reconcile this apparent paradox: Being able to see is a BFOR for a driver.

That raises a question: Is drug and alcohol testing a BFOR? More precisely, is establishing a policy that ensures employees aren’t under the influence of drugs or alcohol at work a BFOR?

This week’s HR Insider feature article explains the 4 questions you need to ask to answer that question—and thus determine if your testing policies are within legal boundaries.

Click here for a Model Drug Testing Policy and links to other Model Policies on drug testing that you can adapt for your own workplace

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