Understand the Legal Requirements

Establishing a drug-free workplace policy can be hard. Employers who are considering adopting such a policy usually have many questions, reservations, and concerns. They want to know:

• “Is this something I really have to do?”
  
• “What, exactly, is being required of me?”
  
• “Will it be expensive?”
  
• “Will it make my employees angry or resentful?”
  
• “Can I get into trouble if I do something wrong?”
  
• “How do I avoid getting sued?”

These last two questions may sound cynical, but they represent legitimate concerns. The laws surrounding drug testing in the workplace can be extremely complex and confusing. Organizations failing to comply with Federal, State, and local requirements for a drug-free workplace can face severe penalties, and lawsuits filed by workers are not uncommon.

The best way for an employer to avoid legal problems is to hire an employment lawyer to help develop the workplace policy. This will help ensure that the new policy is consistent with all the required rules and regulations.

But it is also important for employers—and their workers—to develop their own understanding of their legal rights and obligations. Otherwise, employers may make serious and costly legal mistakes in the way they implement policies, and employees may feel wronged, persecuted, or deprived of personal power.

This section provides a brief overview of the Federal, State, and local statutes and regulations that should be taken into account when developing a drug-free workplace policy. It also offers a few basic tips on how to implement such a program fairly, and in a manner that will reduce the likelihood of legal problems.

SAMHSA strongly recommends that everyone in the workplace be provided with this information and given an opportunity to discuss it. Ultimately, it will be easier for everyone to work together, if they share some common understanding of what is, and is not, permissible under the law.

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Federal laws and regulations

When employers develop and implement a drug-free workplace policy, they should consider several different Federal laws and regulations. The most important are

• The Drug-Free Workplace Act of 1988[1]
  
• The Omnibus Transportation Employee Testing Act of 1991 (and accompanying regulations)[2]
  
• The U.S. Department of Defense’s Rules and Regulations for Defense Contractors[3]
  
• The National Labor Relations Act[4]
  
• The Americans with Disabilities Act of 1990[5]
  
• The Civil Rights Act of 1964[6]
  
• The Family and Medical Leave Act of 1993[7]

These mandates can be divided into two broad groups, or categories, of legislation.

One set of laws explicitly targets workplace substance abuse. An example of these laws is the Drug-Free Workplace Act of 1988. Such acts legally compel certain types of employers to take action against drug use in the workplace. For example, employers may be required to develop and circulate a written policy regarding drug use in the workplace or to administer drug tests to certain employees.

The other set of laws is designed to protect the basic civil rights of American workers. These laws include the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) of 1990. These statutes afford special legal protections to certain kinds of employees, and they set clear limits on how far an employer can go in investigating and disciplining employee drug use. Under the ADA, for example, employers are prohibited from firing a drug addict who is already seeking treatment for his or her condition.

Balancing the competing demands of these two types of legislation is one of the biggest challenges involved in creating a drug-free workplace policy.

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FEDERAL WORKPLACE SUBSTANCE ABUSE LEGISLATION: WHAT EXACTLY IS REQUIRED?

Right now, the Federal Government does not require most private companies or individuals to have a drug-free workplace policy of any kind. The exceptions to this are Federal contractors and grantees, as well as “safety-sensitive industries.”

Requirements for Federal Contractors/Grantees

The most important piece of legislation regulating Federal contractors/grantees is the Drug-Free Workplace Act of 1988. This Act requires any organization that receives a Federal contract worth $100,000 or more, to establish a drug-free workplace policy. It also requires all organizations receiving a Federal grant of any size to maintain such a policy.

At a minimum, the organization must

1. Prepare and distribute a formal drug-free workplace policy statement. This statement should clearly prohibit the manufacture, use, and distribution of controlled substances in the workplace and spell out the specific consequences of violating this policy.
   
   
2. Establish a drug-free awareness program. This program should inform employees of the dangers of workplace substance abuse; review the requirements of the organization’s drug-free workplace policy; and offer information about any counseling, rehabilitation, or employee assistance programs that may be available.
   
   
3. Ensure that all employees working on the Federal contract understand their personal reporting obligations. Under the terms of the Act, an employee must notify the employer within 5 calendar days if he or she is convicted of a criminal drug violation.
   
   
4. Notify the Federal contracting agency of any covered violation. Under the terms of the Act, the employer has 10 days to report that a covered employee has been convicted of a criminal drug violation.
   
   
5. Take direct action against an employee convicted of a workplace drug violation. This action may involve imposing a penalty of some kind or requiring the offender to participate in an appropriate rehabilitation or counseling program.
   
   
6. Maintain an ongoing good faith effort to meet all the requirements of the Act throughout the life of the contract. Covered organizations must demonstrate their intentions and actions toward maintaining a drug-free workplace. Their failure to comply with terms of the Drug-Free Workplace Act may result in a variety of penalties, including suspension or termination of their grants/contracts and being prohibited from applying for future Government funding.

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Requirements for Safety-Sensitive Industries

Department of Transportation rules and regulations. Employers and employees working in fields that affect public safety and national security are, understandably, subject to some additional drug testing requirements. The most important piece of Federal legislation affecting safety-sensitive industries is the Omnibus Transportation Employee Testing Act of 1991. This Act requires drug and alcohol testing of all safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines and other transportation industries. Any employer whose business is regulated by one of the following Federal agencies is covered under the Act:

• Federal Aviation Administration
  
• Federal Highway Administration
  
• Federal Railroad Administration
  
• United States Coast Guard
  
• Urban Mass Transportation Administration
  
• Research and Special Programs Administration (pipelines)

Though each of these agencies has developed its own set of guidelines and procedures for complying with the Omnibus Transportation Employee Testing Act, certain core requirements apply to everyone within the transportation industry:

1. All employers in the transportation industry are required to test safety-sensitive employees at certain key points in their professional careers. These key points include a) before the employee is hired, b) whenever there is reasonable suspicion that the employee has been involved in drug use, c) immediately after the employee is involved in an accident, and d) before allowing the employee to return to duty following suspension for drug abuse.
   
   
2. All employers in the transportation industry are required to have a program of random drug testing in place.
   
   
3. All drug testing conducted under the Act must be carried out by a laboratory certified by the U.S. Department of Health and Human Services. See http://www.workplace.samhsa.gov/DrugTesting/Level_1_Pages/CertifiedLabs.aspx/.
   
   
4. All drug testing conducted under the Act must test for five different classes of drugs: marijuana, cocaine, amphetamines, opiates, and phencyclidine (or PCP).
   
   
5. All alcohol testing of employees must strictly adhere to the Department of Transportation’s (DOT’s) policies and procedures for alcohol testing and the testing must be conducted using devices and equipment approved by DOT.
   
   
6. All positive tests must be reviewed by a trained Medical Review Officer, and employees must be allowed to consult with this officer before the test results are reported to the employer.
   
   
7. All employees, whether in safety-sensitive positions or not, must receive drug and alcohol awareness training and education.
   
   
8. All supervisors must receive at least 2 hours of training in substance abuse detection, documentation, and intervention. Half of this training time should be devoted to drug abuse, the other half to alcohol abuse.
   
   
9. Any employee who is determined to have a substance abuse problem must be referred by the employer to a trained Substance Abuse Professional. This Substance Abuse Professional will be responsible for evaluating the employee’s treatment needs and assessing the employee’s ability to return to work.

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Employers who are subject to the requirements of the Omnibus Transportation Employee Testing Act must ensure that their policies and procedures strictly adhere to DOT’s requirements. Otherwise, employers run the risk of failing to comply with the Act or violating their employees’ civil liberties, either of which can have serious consequences.

More detailed information about how to meet the requirements of the Act can be obtained from DOT’s Office of Drug and Alcohol Policy and Compliance, which publishes several helpful guidelines and manuals for employers and employees. These materials are available online at http://www.dot.gov/ost/dapc/NEW_DOCS/part40.html?proc/.

Department of Defense rules and regulations. Of course, transportation workers are not the only employees whose work affects public safety or security. The Department of Defense (DOD) has developed its own set of regulations for contractors working in the national security arena (section 48 CFR 252.223–7004). Under these regulations, all DOD contractors who have access to sensitive, classified information must maintain a drug-free workplace policy that includes the following:

1. A comprehensive employee assistance program, including coordination with local community service providers and resources.
   
   
2. Provision for self-referrals and supervisory referrals for drug treatment.
   
   
3. Supervisory training on detecting and responding to illegal drug use.
   
   
4. A carefully controlled and monitored employee drug testing policy. This testing policy should include provisions for testing a) when there is reasonable suspicion that an employee has been involved in illegal drug use, b) when an employee has been involved in an accident or unsafe practice, c) as part of a program of counseling or rehabilitation, or d) as part of a voluntary employee drug testing program.

The DOD regulations also require covered contractors to ensure that their drug testing policies are consistent with applicable State laws and that they are agreed to by any relevant labor unions. More detailed information about the Department of Defense’s requirements can be found in the code of Federal Regulation (48 CFR 252.223–7004) and at the DOD’s procurement center Web site (http://www.acq.osd.mil/dpap).

Federal drug testing requirements for other safety-sensitive employees. The U.S. Department of Energy, the National Aeronautics and Space Administration (better known as NASA), and the Nuclear Regulatory Commission all have drug testing requirements for safety-sensitive contractors that are quite similar to those of the Department of Defense. More information about these requirements can be found at each agency’s Web site or in the Code of Federal Regulations, which is available online at http://www.acq.osd.mil/dpap.

By Executive Order 12564, all Federal employees involved in “law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of public trust” are subject to mandatory drug testing. But this order has little significance for private employers.

Virtually all State and local law enforcement officers and most emergency service providers are also required to undergo routine drug testing. However, the laws and regulations affecting these professions vary from State to State and agency to agency. Currently, there is no uniform Federal requirement for “first responders” to emergencies.

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FEDERAL CIVIL RIGHTS LAWS AND REGULATIONS: WHAT’S OKAY?

Employers who are subject to the laws described above should do everything in their power to comply with the Federal Government’s requirements. Employers who do not comply with the Drug-Free Workplace Act or the Omnibus Transportation Employee Testing Act may be subject to severe financial penalties and liable for related injuries and damages.

At the same time, it is imperative for employers to ensure that they do not create drug-free workplace policies or drug testing programs that infringe on the basic rights and civil liberties of their employees.

For employers considering drug testing, legal counsel is advisable, because lawsuits have been filed against employers for invasion of privacy, wrongful discharge, defamation, and discrimination. The best way to avoid getting drawn into litigation, aside from securing legal counsel, is to make sure that all your policies are implemented fairly and consistently—in a manner that does not conflict with any Federal, State, or local civil rights or workers’ rights laws.

The Americans With Disabilities Act: Protecting Recovering Substance Abusers and the Physically Impaired

Perhaps the most important Federal civil rights legislation for employers to be aware of is the Americans with Disabilities Act of 1990. The ADA prohibits all U.S. employers with more than 15 employees from discriminating against qualified job applicants and employees because of a physical disability. The Act does not, in any way, prohibit employers from having a drug-free workplace policy, nor does it afford any special protection to individuals who are currently using illegal drugs. But it does make it illegal for employers to discriminate against recovering alcoholics and drug users, who have already sought treatment for their addiction.

In other words, under the terms of the ADA:

• Employers cannot fire, refuse to hire, or refuse to promote someone simply because he or she has a history of substance abuse.
  
  
• They also cannot fire, refuse to hire, or refuse to promote someone merely because he or she is enrolled in a drug or alcohol rehabilitation program.

U.S. employers who have drug testing programs also need to be extremely careful not to single out employees for testing simply because they look or act as though they are under the influence of drugs or alcohol. Many of the physical symptoms that are commonly associated with intoxication—such as slurred speech, disorientation, or a lack of coordination—can also be the result of a serious physical disability (e.g., diabetes, low blood sugar, mental illness). Individuals suffering such ailments are clearly protected under the provisions of the ADA. Singling them out for testing or disciplinary action may well result in charges of discrimination.

Finally, employers should refrain from asking employees about their legal prescription drug use as part of the prehiring or prepromotion drug testing process. While the case law in this area is still evolving, some State courts have ruled that requesting such information constitutes a form of discrimination and is in violation of the ADA.[8]

Alleged violations of the Americans with Disabilities Act account for almost half of all lawsuits involving drug-free workplace programs, so it is extremely important for employers to acquaint themselves with the details of this legislation.[9] Additional information about the Act can be obtained by contacting the U.S. Department of Justice’s ADA hotline at 1–800–514–0301 or by visiting the Federal Government’s ADA home page at http://www.usdoj.gov/crt/ada/adahom1.htm/.

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Employers trying to implement drug-free workplace policies in unionized workplaces need to be aware of the requirements of the National Labor Relations Act. Passed in 1935, this Act provides a legal framework for all U.S. management and labor negotiations.

Under the terms of the Act, any drug testing program affecting unionized workers must be negotiated and agreed upon with the union through a formal collective bargaining process. Even when an employer is required to implement a drug testing program by another Federal mandate, such as the Omnibus Transportation Employee Testing Act, that employer must negotiate with the union to determine exactly when testing will be conducted and what kinds of penalties should apply to workers who test positive for drug or alcohol use.

All too often, employers assume that negotiating a drug testing agreement or drug-free workplace policy with their unions will be an unpleasant and adversarial process. However, some unions actually support such programs because of their potential to reduce workplace injuries and accidents. The United Brotherhood of Carpenters and Joiners of America, for example, is one of four large international construction unions that recently joined forces with the Department of Labor to promote the benefits of drug-free workplace programs.

Detailed information about how an employer can work collaboratively with a union is available at the Web site of the National Labor Relations Board (http://www.nlrb.gov).

The Family and Medical Leave Act of 1993: Giving Employees Time to Recover

U.S. employers with more than 50 employees are also subject to the requirements of the Family and Medical Leave Act. The FMLA allows established employees who have worked for an employer for at least a year to take up to 12 weeks of unpaid leave because of a serious health problem—including a substance abuse problem.

Eligible employees may use their FMLA leave time to deal with several substance abuse–related problems, including

• Treatment of drug or alcohol addiction
  
• Treatment of another physical illness or incapacity related to substance abuse (such as kidney failure)
  
• To care for a close family member who is undergoing treatment for these conditions

Under the terms of the Act, employers not only must grant unpaid leave to all eligible employees, but they also are prohibited from retaliating against workers who request FMLA leave. For example, an employer cannot demote, fire, or refuse promotion to someone simply because that employee takes 12 weeks off for treatment of a substance abuse addiction. Employers are also prohibited from taking any action against workers who request time off to care for addicted relatives.

However, only workers with a certain amount of tenure are eligible for FMLA leave, and the amount of leave time they are eligible for can vary greatly. To help employers untangle the sometimes confusing provisions of this legislation, the U.S. Department of Labor has developed a handy guide, “FMLA Compliance Assistance.” This guide is available online at http://www.dol.gov/esa/whd/fmla/index.htm/.

The Civil Rights Act of 1964: Guaranteeing Fair and Equal Treatment for All

Finally, employers implementing a drug-free workplace policy need to keep in mind the requirements of Title VII of the Civil Rights Act of 1964. This landmark bill prohibits private employers with 15 or more employees from discriminating against individuals on the basis of race, sex, religion, or nationality.

Challenges to drug testing or drug-free workplace policies under this legislation are relatively rare, but employers should make sure that their programs treat all workers equally and avoid singling out any particular racial, ethnic, or gender group for testing or disciplinary action.

In large, racially and ethnically diverse workplaces, it is also wise to involve a diverse and representative group of employees in formulating your policy. This will help ensure that you produce a program that is culturally competent, fairly enforced, and sensitive to the needs of all employees.

More information on Title VII of the Civil Rights Act of 1964 is available from the Equal Employment Opportunity Commission at http://www.eeoc.gov/.

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State and local laws and regulations

The laws described above represent the major Federal rules and regulations that may have some bearing on the design and implementation of a drug-free workplace policy. However, employers who are considering developing a drug-free workplace also need to learn about any State and local requirements that apply to their organizations. Broadly speaking, three different types of State legislation can affect workplace drug policies. They include

• State and local laws regulating drug testing
  
• State workers’ compensation laws
  
• State unemployment insurance laws

STATE AND LOCAL DRUG TESTING LAWS: A MIXED BAG

Many States and U.S. Territories have their own laws and regulations dictating when and how workplace drug testing should be carried out.[10] Some also have laws that require State and local contractors to develop drug-free workplace policies similar to those required by the Federal Drug-Free Workplace Act. No one set of rules and regulations applies throughout the country. Some States, such as Louisiana, allow drug testing in virtually every type of business and in both the public and private sectors. Others States, such as Maine, restrict who can be tested, how they can be tested, and what kinds of rehabilitation and disciplinary options can result from a positive test.

The best way to learn more about any State and local drug testing laws that apply to your business is to contact a local employment attorney.

STATE WORKERS’ COMPENSATION LAWS:
GET A PRICE BREAK FOR HAVING A DRUG-FREE WORKPLACE

In the interests of promoting safer and healthier workplaces, some States offer employers with drug-free workplace programs a discount on their workers’ compensation insurance premiums. For the same reasons, many States deny workers’ compensation benefits to workers whose injuries are determined to be the result of substance abuse. State laws and requirements in this area change frequently, so the best way to get accurate information about local workers’ compensation policies is to contact your State Government.

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STATE UNEMPLOYMENT INSURANCE: SOME SUBSTANCE ABUSERS MAY NOT BE ELIGIBLE

Finally, some States have laws and rules that limit or deny unemployment benefits to individuals who are fired because of a positive drug test. For example, New York’s Unemployment Compensation State Law stipulates that an employee may be “disqualified” from receiving benefits for “testing positive on a drug test or for using drugs and alcohol in violation of workplace policy.”[11] Currently, almost 30 States have regulations similar to New York’s. Additional information about your State’s rules can be obtained from your State office of unemployment.

Conclusion: 10 easy steps for avoiding legal problems

Clearly, an employer needs to consider many different Federal, State, and local laws when designing and implementing a drug-free workplace program. The sheer number and complexity of relevant statutes can sometimes make it seem as though implementing a program is more trouble than it is worth. However, employers can take several simple and practical steps to avoid legal problems.

——— Consult a lawyer whenever you introduce a new drug-free workplace policy or make alternations to an existing policy. The American Bar Association and most State Bar Associations offer free legal referral services that can help you locate a qualified employment lawyer in your area.

——— Make sure that your drug-free workplace policy clearly stipulates what the penalties for policy violations will be. If your policy includes a drug testing program, spell out exactly who will be tested, when they will be tested, and what will happen to employees who test positive.

——— Make sure that every one of your employees receives and signs a written copy of your drug-free workplace policy. Verbal agreements and unsigned agreements have little legal standing.

——— Make sure that you, and all your supervisors, receive proper training in how to detect and respond to workplace drug and alcohol abuse.

——— Maintain detailed and objective records documenting the performance problems of all your employees. Such records often provide a basis for referring workers to employee assistance programs.

——— Never take disciplinary action against a worker or accuse a worker of a policy violation simply because that employee is acting impaired. Instead, try to clarify the reasons for the employee’s impairment. If drug testing is a part of your workplace policy, obtain a confirmatory test result before taking any action.

——— Never accuse or confront an employee in front of his or her coworkers. Instead, try to stage all discussions someplace private, with another manager present to serve as a witness.

——— Never single out an individual employee, or particular group of employees, for special treatment—whether it is rehabilitation or punishment. Any inconsistencies in the enforcement of your policy may lead to charges of discrimination.

——— Try to get to know your employees as much as possible. This may help you more quickly identify workers who are in trouble or developing substance abuse problems.

——— Most important, try to involve workers at all levels of your organization in developing and implementing your drug-free workplace policy. This will reduce misunderstandings about the reasons for having a drug-free workplace program and help ensure that your policies and procedures are fair to everyone.
Employers who follow these basic steps, and who strive to create programs that are fair, consistent, and supported by all should have no trouble staying on the right side of the law.

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References

1. U.S. House of Representatives. 1988. Drug-Free Workplace Act of 1988 U.S.C. 701–707. and U.S. House of Representatives. 1998. Drug-Free Workplace Act of 1998 U.S.C. 105–584.
2. U.S. Department of Transportation, Office of Drug and Alcohol Policy and Compliance. 2004. The Omnibus Transportation Employee Testing Act of 1991. Available at http://www.dot.gov/ost/dapc/ .
3. U.S. Department of Defense. N.d. Defense Procurement and Acquisition Policy. Available at http://www.acq.osd.mil/dpap/.
4. National Labor Relations Board. N.d. Available at http://www.nlrb.gov/.
5. U.S. Department of Justice’s. N.d. Americans with Disabilities Act. Available at http://www.usdoj.gov/crt/ada/adahom1.htm/.
6. Equal Employment Opportunity Commission. N.d. “Title VII of the Civil Rights Act of 1964.” Available at http://www.eeoc.gov/.
7. U.S. Department of Labor. N.d. Compliance Assistance: Family Medical Leave Act. Available at http://www.dol.gov/esa/whd/fmla/index.htm/.
8. American Civil Liberties Union . 2002. Privacy in America : Legislative Briefing Kit on Drug Testing. Washington , D.C.
9. Ibid.
10. William Martucci and Jeffrey M. Place . 1999. “Drug Testing in the Private Sector Workplace: The Changing Impact of State Laws.” Employment Relations Today 26:93–102.
11. U.S. Department of Labor. N.d. “ New York State Law—Unemployment Compensation.” Employment Standards Administration Wage and Hour Division . Available at http://www.dol.gov/asp/programs/drugs/said/StateLaw.asp?id=737/.

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