It’s “What’s Up? Wednesday”. Time to talk about PRE-EMPLOYMENT EXAMS . . .

You asked:  “Our company is about to start requiring pre-employment medical exams for some positions and pre-employment drug screens for all positions. Who pays for these tests? Is that the company’s responsibility or can we require the candidate to pay for it?

Laura answers:

 

Regarding medical exams: The best rule of thumb is that if you, the employer, require an applicant or an employee to visit an employer-selected health care professional; then you, the employer, should cover all costs associated with that visit.

 

Regarding drug testing: According to the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services, an employer normally pays for a drug test.  Though no federal law exists to prohibit employers from passing the cost on to their prospective candidates, many states do have very clear regulations requiring employers to foot the bill. It is important that you check the laws in your state, not only to find out if you are required to pay for the tests, but to learn if there are any other statutes you need to follow.

 

For example, some states require that all applicants sign a release indicating their willingness to submit to a drug test. Others have specific regulations regarding the timing of the test, whether it can be anytime in the hiring process or only after a conditional offer of employment has been made. (Note: The Americans with Disabilities Act (ADA) does not allow employers to require a medical examination of any kind, including testing for alcohol, until the applicant has been offered employment.)

 

Below are various regulations found in many of the states in which our clients do business:

 

STATE

SAMPLE OF MEDICAL & DRUG SCREEN COST REGULATIONS

PA

No requirements regarding the cost of drug testing. However, under PA law, an employer generally must pay the cost of any physical exam, unless the exam is required by a specific law as a condition of employment.

MD

Employers pay for all employment required drug testing costs. For retesting, the donor employee pays the cost of the retest.

IN

The costs of employer-required medical testing are to be paid by employers.

VA

It shall be unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination, initial pre-employment drug screening or the cost of furnishing any medical records required by the employer as a condition of employment.

WV

It is unlawful to require an employee or job applicant to pay for medical examinations required by the employer as a condition of employment.

NC

Employers must pay for the costs of all controlled substance examinations while the costs of retests requested by the employee are at the employee’s expense.

GA

An employer shall pay the cost of all drug tests, initial and confirmation, which the employer requires of employees. An employee or job applicant shall pay the cost of any additional tests not required by the employer.


Whether or not state laws prohibit the employer from passing on the cost of testing to a job applicant, the practice could lead to other complications. Many applicants would be discouraged from continuing on with the application process if they know they will be required to pay for testing up front. In addition, employers who decide to deduct the cost of testing from the employee’s first paycheck could run afoul of other employment laws, especially if that cost would drop their paycheck below minimum wage requirements. It is a best practice for the employer to pay for any testing it requires, whether it is medical or drug screening.

 

A few other important considerations as you implement your drug testing program:

1.      Put it in writing: Be sure you have a written drug testing policy in place. It should clearly spell out your company’s expectations of employees regarding drugs and alcohol, including the requirement that all applicants and employees be drug-free.

2.      Give everyone fair warning: Best to offer applicants advanced notice that drug screening will be required. This can be a notice on your job application or a separate notice to be given at the interview.

3.      Be consistent! You may only require drug tests or physical examinations if they are required of all applicants for the same job.

4.      Don’t forget about the FLSA when it comes to testing current employees: The time an employee spends getting drug tested (for random, post-accident, reasonable suspicion, and return-to-work tests) is compensable time. Employers are required to pay non-exempt employees for time spent having a required drug test.

For more information about pre-employment medical exams, drug screens and any other Human Resource issues, please send your questions to hrcounselorscorner@eastcoastrm.com. If you’d like email notification of all blog updates, just click the follow button at the bottom of the window.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

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