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EMPLOYMENT LAW GUIDE: - page 48 / 134





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Questions About Drug Use

Questions about the use of legal and illegal drugs are complicated. For example,

asking an applicant to list all currently prescribed drugs may reveal that she is using AZT or

insulin, indicating that the applicant may be disabled. An exception would exist if the

employer has administered a test for the current use of illegal drugs and an applicant tests

positive. In that case, the employer may ask about the use of legal drugs in order to seek an

explanation for the positive test result.

An employer may inquire about the current illegal use of drugs, provided that the

questions are not likely to elicit information about past drug addiction which is a covered

disability. For example, it is permissible to ask whether the applicant has ever engaged in the

use of illegal drugs and when was the last time. However, it is prohibited to ask if the

applicant has ever been addicted to illegal drugs or treated for drug abuse. Additional and

broader questions may be permitted depending on the circumstances and occupation.

  • 2.

    Reference, Background and Credit Checks

    • a.

      Reference Checks

In conducting reference checks with former employers, there are two responses an

interviewer might encounter. First, many former employers will only verify that the

individual worked for them and provide dates of employment. In general, these former

employers will not provide any information related to the reason for separation of the

employee, and many will require that the request for reference be made in writing. The

second response is not so limited and allows former employers to provide truthful details

about the employee’s performance and separation. In many instances, former employers can

require that former employees sign releases authorizing the release of information to


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