Ask the Experts: Drug Tests, W-4 and Disabilities

On Mar 7, 2023

In the latest installment of New Jersey Business Magazine’s Ask the Experts column, HR professionals working with the New Jersey Business & Industry Association respond to executives’ inquiries on three interesting workplace issues:

We have a repeat applicant whom we offered a job to in the past. This candidate failed a drug screen back then, so we rescinded the offer. Can we reject them now based on their past drug screen result?

No. Chances are that rejecting an applicant based on a previous drug screen will violate the Americans with Disabilities Act (ADA). The ADA prohibits employment discrimination on the basis of a disability, which includes being in recovery from substance use disorders. The ADA applies to employers with 15 or more employees, although state laws also prohibit disability discrimination in employment, and many of those laws apply at a lower employee count.

Even if you aren’t subject to the ADA or a state disability discrimination law, we don’t recommend excluding someone from your selection process based on their past failure of a drug screen or other pre-employment screening. Many things could have changed since the last time this candidate was in your selection process, including your own drug screening process, the candidate’s personal habits, or even which drugs are legal under the law in your state. By excluding them from consideration, you could be missing out on a great candidate.

Can I limit the number of times an employee makes changes to their W-4?

No. IRS guidance states that an employee has the right to make changes to their Form W-4 as often as they would like, and you, as the employer, need to make those changes, even if they’re frequent. The only exceptions are if the Form W-4 is invalid or if you have been previously notified by the IRS that the employee is subject to an IRS “lock-in letter.”

If an employee gives you a revised Form W-4, the IRS states that you need to begin the new withholding no later than the start of the first pay period ending on or after the 30th day of receiving the new form. We recommend having a standard process for implementing any new Forms W-4 and ensuring your employees are aware of that process.

A candidate told us they have a disability. What do we need to do?

We recommend asking if they need an accommodation during the application process, but above all, ensure that having this information doesn’t influence your hiring decision. The Americans with Disabilities Act (ADA) requires employers to provide accommodations to applicants with disabilities if needed to be considered for a job unless the accommodation causes an undue hardship. If the applicant doesn’t need an accommodation, simply continue to focus on the candidate’s skills and abilities relative to the position for which you’re hiring.

As you’re likely aware, employers are prohibited from asking about disabilities before offering an applicant the job. As a best practice, you should be asking all candidates – not just those who disclose a disability or appear to have a disability – whether they can perform the essential functions of the job with or without a reasonable accommodation. This can be as simple as adding a question to your job application.

It’s important to not make assumptions about a candidate’s ability to perform their job based on their disability. If a candidate during the post-offer stage requests an accommodation to perform the essential functions of their job, then you would engage in the interactive process with them to determine what accommodations may be effective. 

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