FAQ s - Drugs and Alcohol Q. What laws regulate employee drug and alcohol testing? A. Workplace drug and alcohol testing is regulated by both the Americans with Disabilities Act and the Fair Labor Standards Act. ADA allows employers to test current employees for alcohol or drug use and discipline or discharge them based on positive test results. Employers can be held liable for taking adverse action based on false drug test results, however, and for unauthorized disclosure of results. ADA also allows employers to test job applicants for drug use, although tests for alcohol use prior to an actual job offer are prohibited. Under the Fair Labor Standards Act, employees must be paid for their time taking mandatory drug or alcohol tests, even if the testing occurs outside their normal working hours. Many states regulate employee drug and alcohol testing and may have restrictions more rigorous than the federal government's. Check your state requirements. Q. What does the Drug-Free Workplace Act require? A. The Drug-Free Workplace Act, which applies to employers with federal contracts of at least $100,000 or with federal grants of any size, requires you to meet certain requirements designed to keep your workplace free of illegal drugs. To comply with DFWA, you must agree to: distribute to employees a policy statement prohibiting the unlawful manufacture, distribution, possession, or use of controlled substances in the workplace and specifying what actions are taken against employees who violate the policy; establish a drug-free awareness program that informs employees about the dangers of workplace drug abuse, your company's drug-free workplace policy, and the availability of drug counseling, rehabilitation, and employee assistance programs; inform employees that they are required as a condition of employment to comply with the drug-free workplace policy and inform you within five days of any conviction for unlawful drug-related activity at work; notify the federal contracting or grant agency within 10 days of learning of employee convictions for illegal drug activity in the workplace; take appropriate personnel action including firing or requiring employees to participate in drug abuse treatment programs within 30 days of receiving notice about employee convictions for criminal drug offenses occurring in the workplace; and 1 P a g e
make an ongoing, good-faith effort to maintain a drug-free workplace by meeting the requirements of the act. Q. Can I fire employees who appear to have drinking problems? A. Under the Americans with Disabilities Act, you can't fire employees because of alcoholism or because you perceive them to be alcoholics. You can, however, discipline or discharge employees whose alcoholism prevents them from properly performing their job duties. While the ADA specifically recognizes alcoholism as a disability, it also allows employers to: prohibit employees from being under the influence of alcohol while at work and hold employees with alcohol problems to the same job-performance standards and workplace behavior as other employees. In making disciplinary decisions, you can reduce the risk of disability discrimination by focusing on employees' job performance rather than on their real or perceived drinking problems. Keep in mind that employees suffering from alcoholism might have additional protections under state law. Check your state requirements. Q. Can I fire an employee who was arrested for driving while intoxicated? A. If your employee's drunk-driving arrest occurred during work hours and your company has a rule prohibiting employees from being under the influence of alcohol while at work, you should be able to fire the employee for a violation of this rule. If your company doesn't have a specific rule regarding alcohol use but has a general rule that workers must behave appropriately while on duty, you should still be able to discipline (and possibly discharge) the employee for breaching this basic requirement. If the arrest occurred during nonwork hours, the situation is less straightforward. If the employee was driving a company car, your company could be at financial risk for injury to third parties, so you should be able to fire the employee based on this misconduct. If you have a policy allowing employees to use company cars after work hours but prohibiting them from operating such vehicles while under the influence of alcohol, you have even better grounds for discharging the employee. If the employee has never had a problem with on-the-job performance, however, termination based on an after-work drunk-driving arrest may not be a good idea, since this could lead to a disability discrimination charge under the Americans With Disabilities Act. If the employee's job duties require a commercial drivers license (for example, the employee is a truck driver or bus driver), Department of Transportation regulations dictate what actions you must take in the event the employee is arrested for driving while intoxicated. Q. Must we allow the use of medical marijuana in the workplace? A. Employers should check their state requirements concerning medical use of marijuana. Some states allow medical use of marijuana for the treatment of debilitating medical 2 P a g e
conditions such as AIDS, glaucoma, cancer, and chronic pain. However, employers typically are not required to accommodate use of medical marijuana in workplaces. Q. Can we drug test only full-time employees, not part-time employees in order to cut costs? A. Testing employees for drug use can be expensive and limiting testing to only full-time employees will likely save you money. It isn't considered discriminatory to give drug tests to full-time employees only, but before doing so you should have a clearly-written policy establishing your testing procedures and outlining who gets tested. You should also be sure that your testing procedures comply with state law. Many states specifically authorize or regulate employee drug testing, and some states might require you to drug test all employees working in safety-sensitive positions regardless of whether they are full-time or part-time workers. Check your state requirements. Q. What should be included in a drug and alcohol testing policy? A. Having a clear written policy is a critical step in avoiding legal problems related to drug and alcohol testing. Your policy should be communicated to employees before testing begins and should include: a statement that illegal drug and alcohol use will not be tolerated, the goals and purposes of testing, the type of testing to be conducted, the type of testing procedures to be used, the verification procedures for test results, a form employees can sign to consent to testing, the process by which employees can explain or challenge test results, the procedures for maintaining test result confidentiality, identification of an approved drug and alcohol testing facility you'll use, a demonstration that the policy is in compliance with state and federal law, and disciplinary measures for employees who test positive. Your company's drug and alcohol testing program must follow stringent federal laws and regulations, so it's a good idea to consult legal counsel as you develop your policy. Many states have drug and alcohol testing laws and regulations. Check your state requirements. Q. Do states regulate drug testing in the workplace? A. Many states regulate employee drug testing, although laws differ considerably between jurisdictions. Certain states allow all types of testing, for example, while others limit both the types of tests and the categories of employees who can be tested. Some states require all employers to conduct drug and alcohol tests using certain specified procedures; others make testing voluntary but mandate the procedures employers must follow and sometimes the laboratories they must use if they choose to test; and in some states employers are prohibited from disciplining or discharging employees who test positive without a confirmatory test. Check your state requirements. 3 P a g e
Q. Can I ask an employee for proof of drug counseling or treatment? A. If your company has a written policy that allows it, you can ask for proof of employees' drug counseling or treatment. When there is no such policy in place, however, you run the risk of violating employees' civil or privacy rights by inquiring into their drug-use therapy. You should consider asking for proof of counseling or treatment when employees: fail their drug or alcohol tests or have attendance problems related to counseling or treatment during company time. When your company substance-abuse policy calls for rehabilitation of employees who fail their drug or alcohol tests, you should stipulate that you can request proof of rehabilitation and a medical release allowing employees to return to work. Keep in mind, however, that rehabilitated employees might be covered under the Americans with Disabilities Act. You should treat these employees carefully to avoid ADA discrimination claims. If you're planning to request employees' medical records for documentation related to drugabuse counseling or treatment, keep in mind that most state privacy laws prohibit you from requesting medical records unless there's a bona fide business necessity. Check your state requirements. Q. How reliable are drug tests? A. Drug test reliability depends primarily on three factors: the testing facility, the chain of custody, and the test methodology. Testing facilities. Employers that have drug-testing programs should use a testing facility certified by the National Institute on Drug Abuse to ensure that employees' specimens are handled properly to yield accurate results. Chain of custody. To ensure accurate and confidential results, procedures must be in place to prevent tampering with test specimens from the time of their collection to their delivery at the lab. Using a NIDA-certified facility decreases the risk of breaking the chain of custody because it ensures that specimens are handled properly. Methodology. Among the most common test methods: urinalysis is best suited for random drug screens because employees can find ways to beat the test if provided with advance notice; hair testing typically is used to test for cocaine, opium, and phencyclidine (PCP), although this method is not well suited for the detection of recent drug use; and blood testing typically is only useful if employees use drugs a couple of hours before testing and therefore isn't a good predictor of regular drug use. Before conducting any drug tests, your company should establish a drug-testing policy. A formal written policy helps demonstrate compliance with state and federal laws and prevent potential lawsuits. Employer-sponsored drug-testing policies might be subject to federal Equal Employment Opportunity Commission and Americans with Disabilities Act guidelines. In addition, many states have laws and regulations restricting employer drug and alcohol testing. Check your state requirements. 4 P a g e
Q. Can employees be suspended pending the results of drug tests? A. You can suspend employees you believe to be under the influence of drugs pending the results of reasonable-suspicion drug testing if such suspension is covered under your company's written drug-testing policy and allowed under applicable federal and state law. Drug testing is heavily regulated at the federal and state levels, so consult with an attorney before conducting drug tests. In addition, check your state requirements. Q. Can we screen all employees in a department if we believe some may be using drugs? A. If you have a reasonable belief that employees in the department are using illegal drugs and have a policy in place allowing reasonable-suspicion drug testing and if such testing doesn't violate any applicable laws or regulations, you can conduct the tests. You should document your reasons for believing illegal drug use is taking place, however, in the event an employee brings a claim against you. Remember too that state as well as federal law can limit your right to conduct drug testing. Check your state requirements. 5 P a g e