Thursday, April 6, 2017

Blog - Can you Drug Test Seasonal Employees Who Are Minors?

As summer approaches, the number of student workers, that is minors, increases dramatically as students who go on summer break search for a summer job. While minors are source of inexpensive seasonal labor, it is important for employers to keep in mind several employment issues when hiring minors. Depending on job requirements and policies, employers may have reasonable safety and security concerns with seasonal labor needs met by minor, particularly whether to conduct pre-employment and random drug tests.

Decisions to carry out pre-employment and random drug tests require a careful understanding of the nature of minor consent, not only to make certain the consent is valid and enforceable, but also to insulate itself from future liability. That is because Illinois law provides that a person under 18 is a minor. In general terms, minors do not have the maturity necessary to fully grasp the implications or understand the terms of an agreement granting the employer consent. Although a minor may sign a release for an employment drug test, it is not likely to be binding, leaving the employer unprotected and subject to legal liability. To that end, minors are generally not able to legally provide consent, for a drug test or otherwise, as persons under the age of 18 are unable to enter legally binding agreements.

Parents, however, have the legal authority over minors, and therefore, they can give their consent to the drug testing, which will be legally binding. Even if parental consent is obtained, it is important for the employer to keep in mind that the minor is an employee afforded the same rights under the Illinois Human Rights Act or Title VII, including the provisions that all pre-employment and post-hire screenings should demonstrate job-relatedness and be part of a uniformly applied practice. It is also important because the results constitute private health information that is not to be shared with anyone besides the employee in question.

Should an employer determine, consistent with its safety and security needs, that it is reasonably necessary to perform pre-employment and random drug tests for minors, it is necessary to draft a consent form that requires separate signature lines for the minor and parental or legal guardian. In order to avoid any confusion about the dissemination of drug test results, it is also necessary to include a section for the minor to expressly permit drug test results to be shared with a parent or legal guardian.

If you need assistance drafting a consent form, have questions about drug testing, minor consent or other employment laws related to minors please contact us.