Testing for drugs and alcohol is an area where we get many questions from clients. Questions like when can they test for drugs and alcohol in applicants and employees. We hope you find the information in this post helpful
DRUG TESTING
The Drug Free Workplace Policy Builder, provided by the Department of Labor (DOL), provides excellent resources in helping organizations create customized drug-free workplace policies and develop a comprehensive drug-free workplace program, of which a policy is only one component.
Following are excerpts from one page of the DOL web site that address drug and alcohol policies in an organization. Comments provided by our staff are in parenthesis and are not part of the DOL’s web site page.
In general, the Americans with Disabilities Act (ADA) prohibits employment discrimination against employees and applicants with disabilities in organizations that employ 15 or more employees. The term “disability” means an individual has a physical or mental impairment that substantially limits one or more of his/her major life activities or there is a record of such an impairment or an individual is regarded as having such an impairment. The Equal Employment Opportunity Commission (EEOC) oversees application of the ADA. Section 503 of the Rehabilitation Act of 1973 also prohibits discrimination against qualified individuals with disabilities by contractors and subcontractors with the Federal government. The requirements regarding drug and alcohol use under the two laws are identical.
The ADA and the Rehabilitation Act of 1973 affect drug and alcohol policies. Individuals currently engaging in the illegal use of drugs are not “individuals with a disability” when the employer acts on the basis of such use. “Currently” means that the illegal use of drugs “occurred recently enough to justify the employer’s reasonable belief that involvement with drugs is an ongoing problem.”
(Therefore an employer is perfectly within their rights to terminate the hiring process or the employment process if an individual is currently using illegal drugs.)
The following is a brief outline of aspects of the ADA and the Rehabilitation Act of 1973 that are related to employees who have problems with drugs and alcohol:
Employers may prohibit the illegal use of drugs and the use of alcohol in the workplace.
(Even in states like Oregon, where medical marijuana is legal, municipalities address the issue of not tolerating individuals under the current influence of an illegal drug. )
- The ADA is not violated by tests for illegal use of drugs. But remember to meet state requirements.
(Remember there are drug test panels that will only test for the NIDA list of illegal drugs i.e. Marijuana, Opiates, PCP, Cocaine and Amphetamines. If you are testing for more than the five illegal drug panels in pre-employment testing, you may be violating the ADA)
- Employers may discharge or deny employment to persons who currently engage in the illegal use of drugs.
Employers may not discriminate against drug addicts who are not currently using drugs and have been rehabilitated or have a history of drug addiction.
(So if an individual has applied for a position with your firm and tested positive for an illegal drug and was removed from the hiring process you MAY NOT deny him an opportunity to again apply with your firm SOLELY based on the positive drug test earlier. Otherwise you may be violating the ADA.)
- Employers may not discriminate against drug addicts who are currently in a rehabilitation program. The EEOC has clarified that a rehabilitation program includes inpatient or outpatient programs, Employee Assistance Programs, or recognized self-help programs such as Narcotics Anonymous.
- Reasonable accommodation efforts, such as allowing time off for medical care, self-help programs, etc., must be extended to rehabilitated drug addicts or individuals undergoing rehabilitation.
- A person who is an alcoholic may be an “individual with a disability” under the ADA.
(A person who is an alcoholic and tests positive while in your employ for unacceptable levels of alcohol while engaged in a safety sensitive position, like driving a vehicle, is not protected by the ADA.)
- Employers may discipline, discharge or deny employment to alcoholics whose use of alcohol impairs either job performance or conduct to the same extent that such conduct would result in disciplinary action for other employees.
- Employees who use drugs and alcohol may be required to meet the same standards of performance and conduct set for other employees.
- Employees may be required to follow the Drug-Free Workplace Act of 1988 and rules set by Federal agencies pertaining to alcohol and drug use in the workplace.
The DOL web site for the Drug-Free Workplace Act of 1988 can be found here.
- The ADA does not protect casual drug users; but individuals with a record of addiction, or who are erroneously perceived as being addicts, would be covered by the guidelines.
- The Job Accommodation Network, a free service of DOL’s Office of Disability Employment Policy, provides accommodation ideas and fact sheets for Drug Addiction and Alcoholism.
ALCOHOL TESTING
The EEOC has issued guidance on disability-related inquiries and medical examinations. Our purpose here is to highlight comments in this guidance that apply to testing for alcohol testing.
Paragraph 2 of Guidance – Any test for alcohol is considered a medical examination by the EEOC. As such, a test for alcohol should not be conducted on a pre-employment basis.
Paragraph 4 of Guidance – Once an employee is on the job, his/her actual performance is the best measure of ability to do the job. When a need arises to question the ability of an employee to do the essential functions of his/her job or to question whether the employee can do the job without posing a direct threat due to a medical condition, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination. Accordingly, a test for alcohol would be appropriate in these circumstance.
Paragraph 19 of Guidance – May an employer subject an employee, who has been off from work in an alcohol rehabilitation program, to periodic alcohol testing when s/he returns to work?
Yes, but only if the employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat in the absence of periodic testing. Such a reasonable belief requires an individualized assessment of the employee and his/her position and cannot be based on general assumptions. Employers also may conduct periodic alcohol testing pursuant to “last chance” agreements.
In determining whether to subject an employee to periodic alcohol testing (in the absence of a “last chance” agreement), the employer should consider the safety risks associated with the position the employee holds, the consequences of the employee’s inability or impaired ability to perform his/her job functions, and how recently the event(s) occurred that cause the employer to believe that the employee will pose a direct threat (e.g., how long the individual has been an employee, when s/he completed rehabilitation, whether s/he previously has relapsed). Further, the duration and frequency of the testing must be designed to address particular safety concerns and should not be used to harass, intimidate, or retaliate against the employee because of his/her disability. Where the employee repeatedly has tested negative for alcohol, continued testing may not be job-related and consistent with business necessity because the employer no longer may have a reasonable belief that the employee will pose a direct threat.
(Examples are included in the EEOC guidance document.)
Paragraph 26 of Guidance – Employers also may maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace and may conduct alcohol testing for this purpose if they have a reasonable belief that an employee may be under the influence of alcohol at work.
