The phrase “third party” pertains to any person other than the employing entity, state government or the parent corporation itself who can be compelled to undergo a drug and alcohol test as a condition of employment by another. While a third party may not be directly responsible for an employee’s drug or alcohol abuse, they can be held liable for what results from these abuses. In addition, in some states, a third party may be held liable if they knew or suspected their employee had a substance abuse problem but did nothing about it. Unfortunately, there are often no consequences for companies when they fail to perform drug and alcohol tests and in turn face the same consequences as a company that performs an illegal drug and alcohol test.

 

It is important for employers to be aware that if they fail to provide reasonable suspicion-based drug testing, they may be held liable for civil and/or criminal liability. To comply with the states requirements, employers must make reasonable accommodations for their employees’ drug and alcohol use at work. Often times, this requires allowing an employee more time during the day to consume alcohol or a drug of choice, allowing employees more access to bathrooms and changing areas, providing a designated representative to give notice prior to an employee’s last use and notifying employees of their rights in regards to drug testing, and notifying employees of their right to appeal a drug testing’s result if they’re wrong. It is also important for employers to remember that states have rules governing employer liability if an employee is subjected to drug testing and that they cannot be held liable for damages incurred in a drug and alcohol test. Therefore, if an employee tests positive for alcohol or drugs during the course and scope of their employment, it is crucial for the employer to take immediate action to mitigate the damage.

 

For those employers who choose not to comply with their states’ requirements, they may find themselves facing a lawsuit and financial losses. Not only are employers financially vulnerable in this type of situation, but their reputations could be damaged as a result of a negative drug test result. Additionally, it is extremely frustrating for employees to deal with the often difficult and cumbersome task of defending themselves in a court of law. Ultimately, an employee should not have to fear being subjected to drug and alcohol tests at work. Employers must therefore find a way to accommodate the drug and alcohol use of their employees, while protecting themselves from the costly and distracting lawsuit that such testing can create.