REPOST ARTICLE SOURCE: http://www.lexology.com/library/detail.aspx?g=2093f22e-d687-4062-9f33-829f77608cac
An employee who works under the influence of drugs or alcohol at work may, at the very least, have diminished productivity and poor work performance; at worst, he poses a serious safety risk to himself and those around him. As an employer, you have both a right and an obligation to maintain a safe and healthy work environment. Enacting a clear drug testing policy to eliminate workplace substance abuse is an important step toward maintaining a safe work environment.
In developing and enforcing a drug testing policy, you want to protect your managerial rights while respecting your employees’ legal rights. The Americans with Disabilities Act (ADA) protects recovering and recovered alcoholics and drug addicts from discrimination, which can present difficulties in enforcing an effective drug testing policy. How do you navigate the ADA’s regulations while maintaining an alcohol- and drug-free workplace? Below are some tips for ensuring your policy complies with the ADA, as well as recommendations for components that should be included in an effective drug testing policy.
Compliance: What Does the ADA Require of Employers?
While alcohol and drug testing are heavily regulated by state law, Title I and Title V of the ADA also impose requirements on ADA-covered employers with regard to drug and alcohol testing. The ADA regulations, however, give employers significant rights to ensure an alcohol- and drug-free workplace, test employees for illegal drugs and for the use of alcohol (under certain conditions), and comply with other laws and regulations concerning substance abuse.
The ADA treats alcohol and illegal drug testing differently based on their legal statuses. Prescription drug use to treat a disability is also protected under the ADA, provided that the employee can still perform the essential tasks of his or her job with or without a reasonable accommodation.
Employers may test any employee for the use of illegal drugs, which includes drugs prohibited by the Controlled Substances Act, and abuse of otherwise legal drugs. A test for illegal drugs is not considered a medical examination under the ADA, and an employer therefore has the right to require an employee to submit to a drug test and obtain the results. While the ADA protects individuals with a history of substance abuse who are “erroneously regarded” as engaging in illegal drug use, the ADA does not protect current illegal drug use.
What exactly is “current” illegal drug use? Generally, to test an employee, his or her illegal drug use must occur recently enough to justify an employer’s reasonable belief that such use is a continuing problem. Employers can determine whether drug use is current on a case-by-case basis.
Employers cannot discriminate against individuals with alcoholism, which is considered a disability under the ADA. Employers may only test employees for alcohol if they have a reasonable suspicion that the employee is under the influence of alcohol while at work. Importantly, a test for alcohol is considered a medical examination under the ADA. Therefore, employers may only require employees to submit to a test that is job-related and consistent with business necessity.
The ADA may protect an employee’s use of over-the-counter or prescription drugs to treat a disability, and such use should not be prohibited by a drug testing policy. If an employee notifies you that her medication may impair her ability to perform her job, you must engage in the interactive process and, if possible, provide a reasonable accommodation that may include modifying job responsibilities. As noted above, however, over-the-counter and prescription drug abuse is considered illegal drug use, and employers may test employees for such abuse based on a reasonable suspicion.
Developing an ADA-Compliant Drug Testing Policy
To ensure compliance with the ADA and other federal statutes, employers should set clear drug testing policies that notify applicants and employees when testing is required, how testing is conducted, and the confidentiality of drug test results.
Your drug testing policy should make clear to employees when they are subject to testing, such as while employees are on the employer’s premises (on or off duty) or while employees are operating employer’s equipment. The policy should also note what type of testing will be used and which employee positions will be subject. For example, you may state that safety-sensitive or security-related positions will be subject to additional testing.
Here are some important things to remember when crafting your drug testing policy:
Pre-Employment Testing. Pre-employment testing is permissible under the ADA for detecting illegal drug use only. A test for alcohol is a medical examination and, accordingly, an offer for employment cannot be conditional on passing an alcohol test.
Reasonable Suspicion. Employees may be required to submit to a drug test if a supervisor has a reasonable suspicion that he or she is working under the influence of drugs or alcohol. In your policy, define the factors that may give rise to a reasonable suspicion, including objective factors, such as an employee’s appearance, speech, and behavior, as well as any other information that the employee possesses or is under the influence of drugs or alcohol. State clearly that employees taking medication must inform a supervisor if they believe they will be impaired or need a reasonable accommodation to avoid any problems with ADA compliance.
Periodic or Random Drug Testing. This type of testing is the most intrusive on employees’ rights and should be reserved for employees in security or safety-sensitive positions. If periodic or random drug testing is not job-related and consistent with business necessity, or is enforced in a discriminatory manner, your policy could violate the ADA.
Post-Incident Testing. Employers may reserve the right to test employees involved following an accident or workplace safety violation. Businesses that require safety-sensitive positions should consider conducting this type of drug testing.
Drug policies must accurately reflect the types of testing that an employer uses – for example, your policy should not state that employees are subject to random drug testing if, in practice, your company never conducts random drug testing.
The consequences of a positive drug test, refusal to submit to a test, or failure to complete a test should be explicitly stated in every drug testing policy. Under the ADA, employers may require employees who work under the influence of alcohol or drugs to meet the same standards of conduct as everyone else. An employee with a history of drug abuse or alcoholism whose current substance abuse affects job performance is not protected under the ADA, and may be disciplined according to your company’s drug testing policy.
Your policy should include the types of discipline to which the employee may be subject for a positive test, including termination. Applicants should understand that any refusal to submit to a preemployment drug test is an effective withdrawal of the employment application.
Any record related to an employee’s drug test must be treated as a medical record and kept separate from the rest of his or her personnel file if it reveals either the use of a legal prescription drug or a disability. As a best practice, however, employers should keep all drug test results in a separate file from an employee’s personnel file to ensure ADA compliance. Information related to drug tests should be shared with supervisors on a need-to-know basis only for necessary job restrictions and accommodations.