Under the federal Drug-Free Workplace Act, employers with federal contracts and federal grantees must take several steps related to controlled substances in the workplace. Although drug testing is not mandated by this law, the employer must do at least the following:
The employer may have a federal contract or grant suspended or terminated and may be barred from further participation in the federal procurement process for up to five years for violation of this Act.
Sanctions can be triggered if the organization falsely certifies that it abides by the Act, fails to comply with the specifics of the Act or has such a large number of employees convicted of illegal drug activity that it appears the firm has not made a “good-faith” effort to maintain a drug-free workplace.
For five U.S. Department of Transportation (DOT) agencies, there are DOT-wide regulations dealing with drug and alcohol testing procedures (such as specimens, laboratories, etc.) and dealing with employee referral, evaluation and treatment requirements. These regulations are contained in the code of federal regulations (Procedures for Transportation Workplace Drug and Alcohol Testing Programs). In addition, individual DOT agencies have supplemental regulations regarding the particular agency’s rules on drugs, alcohol and mandatory tests for covered employees.
The supplemental drug and alcohol testing regulations that apply to drivers in interstate commerce are contained in the controlled substances and alcohol use and testing code. These regulations have become a model for many state laws and employer policies, not limited to transportation workers.
The following paragraphs provide a detailed summary of the requirements for covered driver employees.
The FMCSA regulations cover a driver and all employers of a driver, who operates a commercial motor vehicle in commerce and who is required to hold a commercial drivers’ license (CDL). This refers to a vehicle that meets any one of the following criteria:
The employer testing a driver must notify the driver as to whether that test is required by the FMCSA regulations and the employer must not falsely represent that a test is required by the regulations.
The employer must distribute its written substance-abuse policy and educational materials to drivers and the employer must retain a signed acknowledgment or receipt of those materials. The materials provided to drivers must include the following information:
In February 2014, FMCSA announced a proposed rule to establish a drug and alcohol clearinghouse for all national CDL holders. FMCSA-regulated truck and bus companies, medical review officers, substance abuse professionals and private, third-party USDOT drug and alcohol testing laboratories would record information into the clearinghouse about all of the following:
The proposal requires employers to conduct pre-employment inquiries for all new CDL drivers and annual searches on current drivers. To ensure privacy, each CDL holder would provide consent before an employer could access the clearinghouse.
The FMCSA drug and alcohol regulations govern drivers anytime they are engaged in “safety-sensitive functions” that include:
The conduct specifically prohibited by the FMCSA regulations include the following:
Drug use - No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any controlled substance, except when the use is according to the instructions of a physician who has advised the driver that the substance does not adversely affect the driver’s ability to safely operate a commercial motor vehicle.
Marijuana - The DOT issued formal statements stating that although marijuana use is now legal in some states; marijuana use is still prohibited for individuals who are operating commercial vehicles. The DOT emphasized that state initiatives have no bearing on the DOT’s regulated drug testing program. The DOT’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason, even medicinal use.
Positive test for drugs - No driver shall report for duty, remain on duty or perform a safety-sensitive function, if the driver tests positive for controlled substances or has an adulterated or substituted specimen.
Alcohol concentration - No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater.
On-duty alcohol use - No driver shall use alcohol while performing safety-sensitive functions.
Pre-duty alcohol use - No driver shall perform safety-sensitive functions within four hours after using alcohol.
Alcohol use following accident - No driver required to take a post-accident test under the regulations shall use alcohol for eight hours following the accident or until he or she undergoes a post-accident alcohol test, whichever occurs first.
The employer is required to conduct testing of drivers in each of the following circumstances:
Pre-employment testing for drugs is mandatory - Pre-employment testing for alcohol is not required (although it is optional if all job offerees are required to take an alcohol test).
Post-accident - The driver was driving or performing other safety-sensitive functions with respect to the vehicle and the accident involved the loss of human life or the driver received a Citation for a moving traffic violation arising from the accident and the accident either involved bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident or involved one or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
Random testing - Annually, the employer must test randomly at the following rates: For drugs – a number of tests equal to 50% of the average number of driver positions. For alcohol – a number of tests equal to 10% of the average number of driver positions. The employer may use any scientifically valid selection method (such as a random number table or a computer-based random number generator).
Reasonable-suspicion - Testing is required whenever the employer has reasonable suspicion to believe that the driver violated the prohibitions described above. Reasonable-suspicion testing is permitted only when a trained supervisor or company official has made specific observations concerning the appearance, behavior, speech or body odors of the driver.
Return-to-duty - Testing and follow-up testing are also required in accordance with the referral, evaluation and treatment provisions in the regulations. Before returning to duty to perform safety-sensitive functions after violating the above rules, the driver must submit a return-to-duty alcohol test below .02 if the conduct involved alcohol or a negative controlled substance test if the conduct involved a controlled substance. The written follow-up testing plan shall, at a minimum, require the driver to be subject to six unannounced follow-up tests in the first 12 months of safety-sensitive duty following the driver’s return to safety-sensitive functions.
Testing procedures include the following features:
In general, disciplinary action is governed by company policy, not FMCSA regulations. However, the minimum required consequences for a driver violating the FMCSA regulations are:
Persons designated to determine whether reasonable suspicion exists must receive at least 60 minutes of training on alcohol misconduct and an additional 60 minutes on controlled substance use. Unlike many state laws, the FMCSA regulations do not require recurrent training.
The FMCSA regulations require the employer to ask the driver-applicant’s previous employers for specific information regarding previous tests for alcohol and controlled substances. According to the driver-applicant’s written authorization, the employer must inquire about the following information from the driver’s previous employers during the preceding two years from the date of application:
If feasible, the above information must be obtained and reviewed by the employer before the driver first performs safety-sensitive functions. If this is not feasible, the information must be obtained and reviewed as soon as possible. However, the employer must not permit the driver to perform safety-sensitive functions after 30 days unless the employer has obtained the information or made and documented a good faith effort to do so.
You must provide to each applicant a written consent for the release of the information from previous employers. The employer must maintain (for three years) a written, confidential record of the information obtained or of the good-faith efforts made to obtain the information.
If the information from previous employers shows violations of FMCSA regulations, the employer may not allow the driver to perform safety-sensitive functions without obtaining information on subsequent compliance with the return-to-duty requirements.
An employer must also ask each applicant whether there are any positive test results or refusals to be tested, on any pre-employment drug or alcohol test administered in the past two years by a transportation employer to which the employee applied for safety-sensitive work covered by the DOT drug and alcohol testing rules. If the applicant admits to such positive tests or refusals to be tested, the employer must not use the applicant for safety-sensitive functions until and unless the applicant documents successful completion of the return-to-duty process.
It is advisable to draft a written policy involving alcohol-related conduct when a company may serve alcohol at a work event. This policy should forbid intoxication, drinking and driving and inappropriate behavior. It should also include a strong sexual harassment language that applies to company social events or a reference to the company’s general harassment policy. Management should ensure that employees are educated on the policy.
At the event, management should monitor to ensure that alcohol is not served to those who are intoxicated or under aged. A good way to prevent overconsumption and save the company money, is to limit the tab on the “open bar” or provide drink coupons. Additionally, a company could hire a professional bartender. This will prevent over-pouring and make it easier to limit consumption for those who have had too much to drink. To prevent drinking and driving, a company can arrange for designated drivers or hired vehicles to take people home.
Although the Americans with Disabilities Act (ADA) is not primarily directed at drug and alcohol use or testing, the statute has special provisions addressing drug and alcohol abuse. Employers must take the ADA into account when dealing with employee drug and alcohol use and when drafting drug-free workplace policies.
One important provision in the ADA specifically excludes from protection individuals who are “currently engaging in the illegal use of drugs.” On the other hand, former drug abusers and individuals “erroneously regarded as” drug abusers, may be considered disabled under the ADA.
Another provision of the ADA exempts drug tests from the law’s definition of “medical examination.” However, because alcohol tests are considered medical examinations, alcohol tests are subject to the ADA’s requirements related to medical examinations.
In other provisions, the ADA places restrictions on employers in connection with seeking medical information from employees and applicants. The law also requires employers to keep such medical information confidential.
The ADA specifically provides that any employee or job applicant who is currently engaging in the illegal use of drugs is not a “qualified individual with a disability.” However, because of the broad definition of that phrase, qualified individuals with a disability may include:
An individual’s past illegal drug use will make that person an individual with a “disability” only if the use substantially affected the person’s ability to perform one or more major life activities or if the employer regarded the employee as substantially limited in his or her ability to perform a major life activity. Therefore, “casual” users and former occasional users of illegal drugs are unlikely to be entitled to the ADA’s protection.
In light of these principles, employers must exercise care not to discriminate against former illegal drug addicts, although employers are permitted to decline to hire or continue to employ individuals currently engaging in the illegal use of drugs. This raises the question as to what does it mean to be “currently engaging in the illegal use of drugs?” In this regard, the EEOC’s Technical Assistance Manual on the ADA states:
The Technical Assistance Manual also provides a useful example:
An applicant or employee who tests positive for an illegal drug cannot immediately enter a drug rehabilitation program and seek to avoid the possibility of discipline or termination by claiming s/he is now in rehabilitation and is no longer using drugs illegally. A person who tests positive for illegal use of drugs is not entitled to the protection that may be available to former users who have been or are in rehabilitation.
Courts have also been willing to find that drug use within several weeks or even a few months, constituted “current” use.
Individuals who abuse alcohol may be considered disabled under the ADA if the person is an alcoholic or a recovering alcoholic. Also, a person erroneously regarded as being an alcoholic may qualify for the ADA’s protection.
As with any individual claiming to be a person with a disability, alcoholics must show that their alcoholism substantially limits their ability to perform a major life activity. In any event, employers are free to discharge, discipline or deny employment to an alcoholic whose use of alcohol adversely affects his or her job performance to the extent that the person is no longer qualified to perform the job. Again, the Technical Assistance Manual provides a useful example:
If an individual who has alcoholism often is late to work or is unable to perform the responsibilities of his or her job, an employer can take disciplinary action on the basis of the poor job performance and conduct. However, an employer may not discipline an alcoholic employee more severely than it does other employees for the same performance or conduct.
By contrast, an alcoholic who has not violated work rules and who asks for time off for rehabilitation may be entitled to such an accommodation under the employer’s ADA duty to make reasonable accommodations to qualified persons with disabilities.
The ADA provides that an employer may hold an alcoholic to the standards of performance and behavior applied to other employees. Also, an employer may prohibit employees from reporting to work under the influence of drugs and alcohol and alcoholic employees are not exempt from this rule. However, the employer may not discipline alcoholic employees more severely than non-alcoholic employees who come to work with alcohol in their systems. As always, a consistently applied employment policy is essential to minimize potential liability.
The ADA permits employers to implement drug testing, adopt drug-free workplace policies and prohibit employees from engaging in illegal use of drugs. Thus, employers may prohibit employees from using drugs and alcohol while at work, from coming to work under the influence of such substances and from working with any amount of illegally used drugs in their systems. Employees who violate the employer’s drug-free workplace rules may be disciplined or discharged and this does not violate the ADA as long as the disciplinary action is applied to both disabled and non-disabled employees.
Because tests for illegal use of drugs are excluded from the definition of “medical examination,” employers may require a drug test at any time (unless there is an applicable state law to the contrary). In contrast, an alcohol test is considered to be a medical examination, so the ADA’s restrictions on medical examinations apply to alcohol tests. Therefore, an employer may not require a pre-employment test for alcohol until a conditional offer of employment has been made to the applicant (and only if such tests are required of all applicants offered jobs in that job classification).
Similarly, after an employee has been employed, random testing for alcohol would not be allowed (unless an applicable law, such as DOT regulations, requires random testing for alcohol). Current employees may be tested for alcohol, as with other medical tests, when the test is job-related and consistent with business necessity (for instance, when the employer has evidence of alcohol use during work or of an alcohol abuse problem affecting the employee’s work).
Because the status of drugs differs from the status of alcohol under the ADA, employers may implement a zero-tolerance standard for drugs (prohibiting any illegally used drugs “in the employee’s system”), but employers should generally follow an “under the influence” standard for alcohol. To avoid ambiguity, it is helpful to define “under the influence” (such as a .04 blood alcohol level from DOT rules or another level such as the state’s DUI standard). Employers should also reserve the right to take disciplinary action for lesser amounts of alcohol in appropriate circumstances.
Any medical information that an employer gleans from a drug test regarding the medical history or condition of an employee is subject to the ADA’s confidentiality provisions. For instance:
The Family and Medical Leave Act (FMLA) has an impact on drug-free workplace programs because the FMLA permits eligible employees to take job-protected leave in order to receive treatment for substance abuse or to care for an immediate family member receiving treatment for substance abuse. Employees covered by the FMLA are those who:
An employee with a substance-abuse problem may be eligible for FMLA leave if the employee’s condition constitutes a “serious health condition” within the meaning of the statute and the regulations.
A serious health condition is an illness, injury, impairment or physical or mental condition that involves either:
Under the regulations, a condition involving such “continuing treatment” can exist in several different ways summarized briefly as follows:
Clearly, an employee seeking rehabilitative services for drug addiction or alcoholism may have a “serious health condition” under the FMLA. Nevertheless, the regulations recognize two important limitations on such an employee’s ability to take job-protected FMLA leave:
Substance abuse may be a serious health condition if the conditions [set forth above] are met. However, FMLA leave may only be taken for treatment for substance abuse by a healthcare provider or by a provider of healthcare services on referral by a healthcare provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.
FMLA leave is available for treatment for substance abuse provided the conditions [set forth above] are met. However, treatment for substance abuse does not prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised his or her right to take FMLA leave for treatment. However, if the employer has an established policy, applied in a nondiscriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy an employee may be terminated whether or not the employee is presently taking FMLA leave.
The principles described in Section 825.112(g) quoted above are applied in an interesting opinion letter published by the Director of the Division of Policy and Analysis in the U.S. Department of Labor’s offices responsible for administering the FMLA. The opinion letter answers four scenarios described by a county employer in questions to the DOL:
An employee comes up for random testing and tests positive for illegal narcotics and the employee has never requested FMLA. Under the county’s policy this employee is subject to immediate termination. FMLA does not require the County to allow the employee the opportunity to seek treatment and be reinstated.
Either the [County] Sheriff or the State’s Attorney receives information that an employee is using illegal narcotics. As a result, the employee is requested to submit to a drug test under the “for cause” provisions of the testing policy. The employee tests positive for illegal narcotics and the employee has never requested FMLA. Under the provisions of the testing policy, the employee is subject to immediate termination. FMLA does not require the County to allow the employee the opportunity to seek treatment and be reinstated.
An employee comes forward and admits to the employer that he or she is addicted to drugs and indicates that a doctor is placing the employee in rehabilitative treatment. The employer states that there is an ongoing debate within your office as to whether such an employee should be subject to immediate termination under the County’s policy. In any event, the employer asks if the County’s policy so provides for immediate termination in this instance, would FMLA require the County to allow the employee the opportunity to seek treatment and be reinstated? The answer is “no.”
An employee who tests positive for the presence of an illegal narcotic is granted FMLA leave and the terms and conditions of reinstatement include a requirement that the employee submit to weekly testing. If the employee tests positive a second time and has either not used all of his or her allotted FMLA leave time or has used all the allotted FMLA leave time, the employer asks if FMLA requires that the County allow the employee the opportunity to seek treatment and be reinstated for a second time? The County’s policy could provide for termination of employment in either case, whether or not the employee has exhausted his or her FMLA leave allotment in the 12-month period.
Although the regulations and opinions cited above are helpful, employers must exercise caution in dealing with leave requests of employees with substance-abuse problems. For instance, if the employee in Scenario 3 above had reported an alcoholism problem (not illegal drug use) and had requested treatment before engaging in any violation of the employer’s substance-abuse policy, the employer would appear to have no basis to deny FMLA leave (assuming the employee was otherwise qualified for FMLA leave) and the employer could be required to grant temporary leave as a reasonable accommodation under the ADA even if FMLA leave was not available to the employee.
Many states are considering legalizing marijuana. Should any states do so for more than medical uses, employers will need to provide clear guidance on expectations and can expect to treat marijuana use much like alcohol use in the workplace. For now, some states allow medical marijuana use in very limited circumstances, most of which will not impact employers. Only certain people participating in college-based trial programs are permitted to use cannabis oil.
Social perception and views regarding marijuana are changing. Many respected institutions are studying beneficial uses of marijuana and its derivative products and some are beginning to release reports. With several states having already allowed local option for legalizing marijuana, employers will likely be faced with developing policies regarding use of legalized marijuana by their employees at some point.
Employers should monitor the status of state law involving the use of marijuana. In certain states where marijuana is legal under state law for medical or even for recreational use, employers are faced with whether an employee who was legally prescribed marijuana and tested positive might require an accommodation for off-site use under disability accommodation laws.
Marijuana remains an illegal drug under the federal Controlled Substances Act, but many states have legalized its use under state law and others are considering changes in their laws. These changes in the law require employers to consider their policies on illegal drug use. Some states are beginning to draw distinctions between the locations of use, barring employers from penalizing workers for using marijuana outside the employer’s property, but not requiring employers to permit the use, consumption or sale at work and permitting discipline of employees who report to work under the influence. Some employers are considering whether to forego testing for marijuana use because establishing impairment is a challenge. However, regardless of state laws, companies enforcing drug-free workplace policies may continue to rely on marijuana’s status as an illegal substance under federal law. The status of these laws is fluid and should be regularly reviewed and considered.