CUC cautioned against pre-employment drug test • Disabilities Council says mishandling of policy could court legal action

The Governor’s Developmental Disabilities Council has cautioned the Commonwealth Utilities Corporation against its policy of pre-employment drug and alcohol screening, saying the agency may face discrimination suit if it failed to implement the requirement properly.

DCC “is concerned that such policy exists and corrective action should be taken seriously to avoid violation of the federal civil rights law for persons with disabilities,” said Executive Director Thomas J. Camacho in a letter to CUC.

The precautions raised by the Council stemmed from a recent job vacancy announcement issued by the government-owned utility firm in which it specified that pre-employment drug screening may be required for the hiring process.

CUC is known as having one of the toughest policies against drug users in the CNMI, even requiring private vendors doing business with the corporation to ensure that their employees are drug-free.

Although the American Disabilities Act allows pre-employment, pre-offer inquiries regarding the use of alcohol or illegal drugs, the law restricts employers to conduct an alcohol test during the process as well as to make drug records of the applicant public.

Camacho said CUC should not ask whether an applicant is an alcoholic or drug addict or whether the person has undergone rehabilitation or treatment if it wants to comply with the laws.

But the utility corporation may ask an applicant to take a drug test which is not considered a medical examination. It could also require employees to take a drug test “without showing that the test is job-related and consistent with business community.”

The results, however, should be kept confidential. “This information cannot be a basis for an adverse employment decision. In contrast to drug test, an alcohol test is considered a medical examination and may not be given before a conditional job offer,” Camacho said.

He warned, however, ADA’s provisions on allowing drug test could clash with its ban on pre-employment inquiries. Since drug tests could also trace presence of drugs taken under medical supervision, Camacho said the findings would be tantamount to that restriction because the applicant’s disability has been discovered prior to making a job offer.

“While the ADA requires the employer to treat the information about the prescription drug as a confidential medical record and precludes the employer from basing hiring decisions on it, it may be difficult for an applicant who is denied a job to know if the reason for the hiring decision was his/her disability,” he added.

Camacho prodded CUC to give drug test only after making conditional offers of employment to an applicant, meaning he or she will get the job if the result is negative of illegal drugs use.

“(W)hile the ADA does not limit testing for the illegal use of drugs to the post-offer stage, this is one way for CUC as an employer to shield itself from liability,” he said.