Under the federal Drug-Free Workplace Act, employers with federal contracts 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 prohibited 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 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 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 Controlled Substances and Alcohol Use and Testing. These regulations have become a model for many state laws and employer policies, not limited to transportation workers. Below is 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 CDL (Commercial Driver’s License). 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:
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 includes the following:
The employer is required to conduct testing of drivers in each of the following circumstances:
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, this 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 applicant refuses to provide the consent, they should not be hired.
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.
You 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.
The federal DOT, Office of Drug and Alcohol Policy and Compliance, has noted that several states have passed initiatives to permit the use of marijuana for so-called “recreational purposes.” In an updated compliance letter dated May 27, 2014, the DOT stated: “We want to make it perfectly clear that these state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program.” The DOT noted that it does not authorize the use of Schedule I drugs, including marijuana, for any reason. In another statement, the DOT noted that its drug and alcohol testing regulations do not authorize “medical marijuana” recommended by a physician in accordance with state law, to be a valid medical explanation for a transportation employee’s positive drug test result.
As a consequence, the DOT has directed medical review officers not to verify a drug test as negative based upon learning that the employee used “recreational marijuana” or “medical marijuana” when states have passed marijuana initiatives. The DOT noted that marijuana remains a drug listed in Schedule I of the Controlled Substances Act and that marijuana remains unacceptable for any safety-sensitive employee subject to drug testing under the DOT drug testing regulations.
The DOT also noted that even though the U.S. Department of Justice issued guidelines for its federal prosecutors in states that have enacted laws authorizing the use of “medical marijuana,” those guidelines have no bearing on the DOT’s regulated drug testing program. The DOT categorically stated: “We will not change our regulated drug testing program based upon these guidelines to Federal prosecutors.”
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 Equal Employment Opportunity Commission has made it clear that although marijuana may be prescribed for a medical reason, it does not fall within the coverage of Americans with Disabilities Act. In a September 9, 2013, letter, Peggy R. Mastroianni, EEOC legal counsel, wrote that “because the ADA does not protect individuals who are currently engaging in the legal use of drugs, asking applicants about current legal drug use is not a disability-related inquiry.” Ms. Mastroianni wrote that “questions asking applicants about their current use of legal drugs or legal use of non-prescription drugs … would not violate the ADA. However, questions about past addiction to legal drugs or questions about whether an applicant has ever participated in a rehabilitation program are disability-related inquiries because past drug addiction generally is a disability.” Ms. Mastroianni’s letter noted that her letter was serving as an informal discussion of the issue and did not constitute an official opinion of the EEOC.
The EEOC’s position in litigation recently has been that if an employee discloses a medical reason for taking marijuana and the employer terminates the employee, not for the marijuana use, but for the underlying disability, then the employer has violated the ADA.
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 would 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 – Illinois has no such law). 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 example, 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 example:
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 one of the following:
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 previously] 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 of substance abuse provided these requirements 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 previously are applied in an interesting opinion letter (Opinion FMLA-59, 1995) 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:
Although the regulations and opinions cited previously are helpful, employers must exercise caution in dealing with leave requests of employees with substance-abuse problems. For example, if the employee in Scenario 3 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.
Although Illinois does not have specific requirements applicable to drug testing, as noted previously, employers in Illinois should bear in mind that cannabis is legal for recreational use by adults who are at least 21 years of age. Illinois workplace privacy laws protect most employees (especially In the private-sector) who use cannabis exclusively during off-duty hours and who are not impaired at work or while on call.
When preparing or enforcing drug policies, employers should take care not to discriminate against employees who use medical cannabis or who use cannabis exclusively during non-work time periods. In addition, although Illinois law allows an employer to discipline an employee for cannabis use when the employer has a good faith belief that the employee is impaired while at work, when an employer intends to discipline an employee for this reason, the employer must provide the employee with an opportunity to rebut the employer's belief that the employee is impaired. If the employee is not provided with an opportunity to respond to an employer's determination, the employee may be permitted to bring a claim against the employer under the Illinois Right to Privacy in the Workplace Act.
The Smoke-free Illinois Act (Public Act 95-0017) prohibits smoking in public places and places of employment and within 15 feet of any entrance, exit, windows that open, or ventilation intake of a public place or place of employment. Places of employment are defined in the Smoke-free Illinois Act as any area under the control of a public or private employer that employees are required to enter, leave or pass through during the course of employment. These areas include, but are not limited to, offices and work areas, restrooms, conference rooms and classrooms, break rooms and cafeterias and other common areas. Smoking also is prohibited in public conveyances, like taxis, buses, shuttles and any vehicle owned, leased or operated by the state or a political subdivision of the state. The act also includes requirements for signage and describes how to lodge a complaint, the enforcement process and how fines will be determined for violations.
About Laner Muchin
About the author
An HR audit Snapshot — Illinois
An introduction - features of the HR Library
Background checks — Illinois
Benefits — Illinois
Celebrations in the workplace — Illinois
Child labor — Illinois
Compliance thresholds — Illinois
Disabilities and reasonable accommodations — Illinois
Disaster planning — Illinois
Discipline — Illinois
Discrimination — Illinois
Diversity in the workplace — Illinois
Drugs and alcohol — Illinois
Family and medical leave — Illinois
Federal contractors and affirmative action — Illinois
Health insurance continuation coverage — Illinois
Health insurance — Illinois
Health insurance portability and privacy — Illinois
Immigration — Illinois
Independent contractors — Illinois
Military leave — Illinois
Other types of leave — Illinois
Pandemic outbreaks — Illinois
Performance evaluations — Illinois
Personnel files — Illinois
Plant closings, mass layoffs and reductions in force — Illinois
Policies and procedures manuals — Illinois
Politics in the workplace — Illinois
Privacy rights — Illinois
Protecting electronic information — Illinois
Public employers — Illinois
Recruiting and hiring — Illinois
Restrictive covenants and trade secrets — Illinois
Safety and health — Illinois
Social media — Illinois
Telecommuting — Illinois
Temporary and leased employees — Illinois
Termination — Illinois
Unemployment compensation — Illinois
Unions — Illinois
Wages and hours — Illinois
Whistleblower protections — Illinois
Workers’ compensation — Illinois
Workplace harassment — Illinois
Workplace investigations — Illinois
Workplace violence — Illinois