Under the federal Drug-Free Workplace Act (enacted in 1988 and modified in 1994), employers with federal contracts of $250,000 or more (or any employer receiving a federal grant of any size) must take several steps related to controlled substances in the workplace. The law also applies to federal grantees and individuals with federal contracts but no subcontracts or subgrantees. Although drug testing is not mandated by this law, the employer must do at least the following:
For more information see:
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 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. See:
for additional information from the DOT’s Office of Drug and Alcohol Policy and Compliance. In addition, individual DOT agencies have supplemental regulations regarding that particular agency’s rules on drugs, alcohol and mandatory tests for covered employees.
The supplemental drug and alcohol testing regulations from the Federal Motor Carrier Safety Administration (FMCSA), which apply to drivers in interstate commerce, are contained in 49 C.F.R. Part 382 (Controlled Substances and Alcohol Use and Testing). In Massachusetts, most owners and drivers of commercial motor vehicles that are operated on the public highways of the state while engaged in commerce are subject to the rules and regulations contained in 49 C.F.R. Part 382. Operators of a farm vehicle controlled and operated by a farmer and used to transport agricultural products, farm machinery, or farm supplies, are exempt so long as the farm vehicle is not used in the operations of a for-hire motor carrier and it is used within 150 miles of the farmer’s farm. 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 which:
The employer must distribute its written substance-abuse policy and educational materials to drivers and the employer must retain a signed acknowledgment-of-receipt of those materials. The materials must be provided to each driver prior to the start of alcohol and controlled substances testing, and to each driver subsequently hired or transferred into a position requiring them to drive a commercial vehicle. The employer must also provide written notice of the availability of this information to representatives of any employee organizations. 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” which 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 Schedule I controlled substance. No driver may report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any non-Schedule I controlled substance, except when the use is pursuant to the instructions of a licensed medical practitioner who is familiar with the driver’s medical history and has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle. An employer having actual knowledge that a driver has used a controlled substance must not permit the driver to perform or continue to perform safety-sensitive functions.
• 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. An employer having knowledge that a driver has tested positive or has adulterated or substituted a specimen must not permit the driver to perform or continue to perform safety-sensitive functions
• 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. An employer having knowledge that a driver has such an alcohol concentration must not permit the driver to perform or continue to perform safety-sensitive functions
• On-duty alcohol use- No driver shall use alcohol while performing safety-sensitive functions. An employer having actual knowledge of such use must not permit the driver to perform or continue to perform safety-sensitive functions
• Pre-duty alcohol use- No driver shall perform safety-sensitive functions within four hours after using alcohol. An employer having actual knowledge of such use must not permit a driver to perform or continue to perform safety-sensitive functions
• Refusal to submit to a test- No driver shall refuse to submit to a pre-employment-controlled substance test, a post-accident alcohol or controlled substance test, a random alcohol or controlled substance test, a reasonable suspicion alcohol or controlled substance test, a return-to-duty alcohol or controlled substance test, or a follow-up alcohol or controlled substance test. An employer must not permit a driver who refuses to submit to a test to perform or continue to perform safety-sensitive functions.
• Alcohol use following accident- No driver required to take a post-accident alcohol test under the regulations shall use alcohol for eight hours following the accident or until they undergo a post-accident alcohol test, whichever occurs first.
When an employer seeks a drug test from a driver, the employer must tell the driver whether the test is required by the FMCSA regulations. If the employer seeks the test under some other law or regulation, the employer must not falsely represent that the test is required by the FMCSA regulations.
The employer is required to conduct testing of drivers in each of the following circumstances:
A driver must undergo a drug test prior to the first time they begin performing safety-sensitive functions for an employer.
There is a limited exception to this rule when a new driver participated in a controlled substances testing program under the regulations within the previous 30 days and:
Employers are not required to conduct pre-employment alcohol testing. If an employer elects to conduct pre-employment alcohol testing, it must:
As soon as practicable after an accident involving a commercial vehicle operating on a public road in commerce, an employer must test for alcohol and controlled substances each of its surviving drivers who was performing safety-sensitive functions with respect to the vehicle and either:
If a required alcohol test is not conducted within two hours after the accident, the employer must prepare and save a record stating the reasons the test was not promptly administered. If the test is not conducted within eight hours, the employer must stop attempting to obtain a test and prepare and save the same record.
If a required drug test is not conducted within 32 hours after the accident, the employer must prepare and save a record stating the reasons the test was not promptly administered.
• Random testing
The employer is required to randomly test drivers for drugs and alcohol. Annually, the employer must test randomly at the following rates:
The random drug and alcohol testing rates are subject to change based on the number of positive tests reported throughout the industry. The current testing rate for all DOT agencies is available at:
The employer may use any scientifically valid selection method (for example, a random number table or a computer-based random number generator,) so long as each driver has an equal chance of being tested each time selections are made. Random selection tests must be unannounced and must be spread reasonably throughout the calendar year
• 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, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver. For drugs, the observations may also include indications of the chronic use and withdrawal effects of drugs.
The reasonable suspicion for alcohol testing must be based on observations made during, just preceding or just after the period of the workday that the driver is subject to the regulations.
Within 24 hours of the observed behavior giving rise to an alcohol or controlled substances reasonable suspicion test, or before the result of the test is released, whichever is earlier, the employer must make a written record of the observations leading to the test. The record must be signed by the supervisor or company official who made the observations.
If a required alcohol test is not conducted within two hours after the determination of reasonable suspicion, the employer must prepare and save a record stating the reasons the test was not promptly administered. If the test is not conducted within eight hours, the employer must stop attempting to obtain a test and prepare and save the same record
Testing and follow-up testing are also required in accordance with the referral, evaluation and treatment provisions in the regulations at 49 C.F.R. Part 40, Subpart O, which are described later in this chapter. 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. A substance abuse professional must establish a written follow-up testing plan, which 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:
Employers may adopt a voluntary self-identification program or policy allowing drivers to report their own alcohol misuse or drug use. Adopting a qualifying program or policy would allow a driver, under certain circumstances, to voluntarily report their alcohol misuse or drug use. To be a “qualified” program or plan under the regulations, the program or plan must:
The employer’s program or policy may incorporate employee monitoring and include non-DOT follow-up testing.
If an employer adopts a qualifying voluntary self-identification program or policy, and a driver admits to alcohol misuse or drug use, they are not subject to the referral, evaluation and treatment requirements of the regulations, so long as they:
All persons designated to supervise drivers must receive at least 60 minutes of training on alcohol misuse and receive at least an additional 60 minutes of training on controlled substances use. The training, which must include the physical, behavioral, speech and performance indicators of probable alcohol misuse and use of controlled substances, will be used by those supervisors to determine whether reasonable suspicion exists to require a driver to undergo testing. Supervisory personnel are not required to undergo 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.
The regulations require employers to provide to each applicant a written consent for the release of the information from the previous employer and requires the applicant to provide such consent to be considered for employment. 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.
The 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.
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 has also directed medical review officers not to accept an assertion of consumption or other use of a hemp or other non-prescription marijuana-related product as a basis for verifying a negative marijuana test because “consuming or using such a product is not a legitimate medical explanation.”
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 ADA is not primarily directed at drug and alcohol use or testing, the statute has special provisions addressing drug and alcohol abuse. Employers, therefore, 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 rehabilitated 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 (EEOC) has made it clear that although marijuana may be prescribed for a medical reason, it does not fall within the coverage of ADA. In a September 9, 2013, letter, Peggy R. Mastroianni, EEOC legal counsel, wrote “because the ADA does not protect individuals who are currently engaging in the illegal use of drugs, asking applicants about current illegal drug use is not a disability-related inquiry.” Ms. Mastroianni wrote “questions asking applicants about their current use of illegal drugs or illegal use of non-prescription drugs…would not violate the ADA. However, questions about past addiction to illegal 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 will make that person an individual with a “disability” only if the rehabilitated drug user’s past use substantially limited the person’s ability to perform at least one 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?” Current use includes:
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 most likely is entitled to such an accommodation under the employer’s ADA duty to make reasonable accommodations to an individual with a disability.
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 number of illegal 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 such 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,” the ADA allows employers may require a drug test at any time. An employer who does pre-employment drug testing, however, may not require an applicant to disclose medication he is taking unless the applicant first fails the drug test. Even though the ADA permits drug tests, employers must ensure they are complying with any other laws applicable to drug tests of employees.
In contrast, an alcohol test is a medical examination under the ADA, so the ADA’s restrictions on medical examinations apply to alcohol tests. Therefore, an employer may not require a pre-employment alcohol test 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 is prohibited 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 objective evidence of alcohol use during 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 – .08 blood alcohol level in Massachusetts) 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:
Under the regulations, a condition involving such “continuing treatment” can exist in several different ways summarized briefly as follows:
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:
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. An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.
The principles 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 required 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. You state 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, you ask 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, you ask whether the FMLA requires the county to 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 example, 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.
Federal law does not prevent an employer from issuing a pre-employment drug test. In fact, in cases of certain types of employees, such as DOT-regulated truck drivers, testing is required. It is not a violation of the ADA for employers to use drug tests to find out if applicants are currently using illegal drugs or legal drugs in an illegal manner. Under the ADA, a drug test is not considered a “medical examination” and therefore is not prohibited in the pre-employment stage. Alcohol tests, however, are considered medical examinations under the ADA. Therefore, an employer may test for alcohol use only after making a conditional offer of employment. An individual who abuses alcohol may be considered disabled if he is a recovering alcoholic. However, an employer can withdraw the offer based on the test result if failing the alcohol test establishes that the applicant is unable to perform his or her job.
The ADA specifically provides that any applicant who is currently an illegal drug user is not a qualified individual with a disability. However, people who have been rehabilitated and do not currently use drugs illegally may be protected by the ADA.
Like many employment actions, drug testing can also trigger Title VII claims, which prohibit discrimination on the basis of race, color, religion, sex or national origin. If drug tests are not administered equally, it could generate a claim of discrimination on the basis of one of these protected categories. Accordingly, employers should implement drug testing policies that are administered across the board, without regard to race or any other protected characteristic. Ultimately, whatever policy is in place must be applied fairly and equally to all employees.
Employers who receive federal contracts for $100,000 or more are subject to the federal Drug-Free Workplace Act. The contractor/employer must provide all employees a policy stating that illegal drug use is prohibited in the workplace and detail the consequences of a violation. Also, the employer must establish a drug-awareness program to educate employees about the drug-free workplace policy, the dangers of drug abuse, the availability of counseling programs and the penalties for violating the policy.
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