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The EEOC memo says that you can't ask employees about prior or present legal drug use, unless the question is ?innocuous? and won't bring out information about a disability.
1. What should you do when you learn of an employee's potential substance abuse issues? Take immediate action to remove the employee from any safety-sensitive work and begin gathering evidence of the incident. If applicable state laws and your employer policy allows, send the employee for a drug or alcohol test.
As a condition of employment, all employees are expected to abide by the organization's policy which prohibits the use and/or abuse of drugs and alcohol in the workplace. By my signature below, I acknowledge, understand, accept, and agree to comply with this policy.
Under the ADA, an employer can make certain pre-offer of employment inquiries regarding an individual's use of alcohol or illegal use of drugs. An employer may ask whether an applicant is currently using illegal drugs or whether the applicant drinks alcohol.
The employee will keep this written deferral with them until they are able to be tested. Reasons for deferral: employee is in an approved leave status, in official travel status away from the test site, or is about to embark on official travel scheduled prior to testing notification.