Category Personnel/Employment
Title Should Christian Schools Have and Employee Drug Testing Policy?
Author/s John L. Cooley
Preview Should Christian Schools Have an Employee Drug Testing Policy?
Text

Should Christian Schools Have an Employee Drug Testing Policy?
John L. Cooley, Attorney

Q: Our school board has been discussing whether to implement a drug-testing policy for employees. We know some states have approved the recreational use of marijuana, while a number of states have legislation that permits medical use of marijuana. In light of this, can we implement a policy, and if so, what should it contain?

A: This question is very timely as more and more jurisdictions potentially consider permitting the recreational or medical use of marijuana. In considering whether to test and the circumstance, the school needs to consider both federal and state law issues. For example, the Americans with Disability Act (ADA) has several potentially applicable requirements. The school could test an employee for illegal drugs, including those prohibited by the Controlled Substances Act, since such test is not a medical examination. However, legal drug use to treat a disability is protected, unless that use prevents the employee from performing the essential functions of the job with or without reasonable accommodation. The question here is whether medical marijuana use is legal drug use under the supervision of a physician. At least one federal Court of Appeals has concluded that the ADA does not protect this use since marijuana is listed as a controlled substance under the federal act.

The school must then consider state law for any specifics. For example, California's state constitution provides for a right of privacy. While the employee has this right, it does not mean that an employer cannot test. Rather it is a case-by-case analysis, requiring the employer to be able to articulate a reason balanced against the employee intrusion.

Generally then, the school may test an applicant or current employee, but it must have a well thought-out policy, complying with the legal requirements for your jurisdiction. The policy should include the following:

  • The biblical position of the school in requiring the testing
  • Testing of all applicants, if the school is requiring pre-employment testing
  • Current employees subject to testing when supervisors have a reasonable suspicion of use, possession, or impairment
  • A definition of factors that constitute reasonable suspicion, including speech, appearance, and behavior
  • Circumstances when an employee is involved in a work-related injury or accident
  • Collection and testing procedures that protect the employee's or applicant's privacy
  • Consequences if an employee refuses to participate in testing, disciplinary procedures if the test is positive and appeal procedures, including retesting by employee at employee's expense
  • Certification that an employee has received a copy of the policy (While including the policy in the teacher/staff handbook is advisable, schools should also have employees sign a specific copy of the policy.)

Despite the proliferation of states permitting marijuana use under various circumstances, Christian schools can require drug screening of applicants or current employees. In doing so, the school should be able to articulate its biblical and business reasons for the prohibition on use, and it must have a policy to place staff on notice.

LLU 25.3

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.

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