Drug-free workplace policies are subject to a variety of federal regulations.
However, most private employers are not obligated to implement such policies, with the exception of federal contractors and grantees, as well as industries and positions that are sensitive to safety and security issues.
Federal legislation concerning drug-free workplace policies can generally be classified into two main categories.
One category comprises laws like the Drug-Free Workplace Act of 1988, which are specifically aimed at addressing substance use in the workplace.
These laws mandate that certain employers actively combat drug use by establishing written policies.
The second category encompasses laws that safeguard the fundamental civil rights of American workers.
These statutes offer specific legal protections to certain employee groups and establish clear boundaries on the extent to which employers can investigate and enforce consequences for drug use among employees.
Key federal laws and regulations in this area include:
- The Americans with Disabilities Act (ADA) of 1990
- The Civil Rights Act of 1964
- The Family and Medical Leave Act (FMLA) of 1993
- The National Labor Relations Act (NRLA) of 1935
Employers contemplating drug testing should seek legal advice, as there have been lawsuits against employers for invasion of privacy, wrongful discharge, defamation, and discrimination.
To minimise the risk of litigation, it is crucial to implement all policies fairly and consistently, ensuring they do not violate any federal, state, or local civil rights or workers’ rights laws.
Americans With Disabilities Act (ADA) of 1990
The Americans with Disabilities Act (ADA) stands out as a crucial piece of federal civil rights legislation relevant to employers who are developing and implementing drug-free workplace policies.
It forbids all U.S. employers with more than 15 employees from discriminating against qualified job applicants and employees due to a physical disability.
The ADA does not prevent employers from implementing drug-free workplace policies, nor does it offer protection to individuals actively using illegal drugs.
However, it does prohibit discrimination against individuals who are recovering alcoholics or drug users and have sought treatment for their addiction.
Under the provisions of the ADA:
- Under the ADA, employers are prohibited from firing, refusing to hire, or denying promotion to individuals solely based on their history of substance use.
- Additionally, under the ADA, employers cannot dismiss, decline to hire, or refuse to promote employees simply because they are participating in a drug or alcohol rehabilitation programme.
Employers with drug-testing programmes must exercise caution to avoid targeting employees for testing based solely on appearances or behaviors suggestive of drug or alcohol influence.
Many physical symptoms commonly linked to intoxication, such as slurred speech, disorientation, or lack of coordination, might also stem from serious physical disabilities or medical conditions, including diabetes, low blood sugar, or mental illness.
Individuals with these conditions are protected under the ADA.
Targeting them for testing or disciplinary actions could lead to allegations of discrimination.
Finally, employers should avoid inquiring about employees’ legal prescription drug use during the pre-hiring or pre-promotion drug-testing process.
Although case law continues to develop in this area, some state courts have determined that requesting such information amounts to discrimination and violates the ADA.
Alleged violations of the ADA comprise nearly half of all lawsuits related to drug-free workplace programs, making it crucial for employers to familiarise themselves with the specifics of this legislation.
Civil Rights Act of 1964
The Civil Rights Act, specifically 28 Code of Federal Regulations (CFR), 42, is a foundational law that forbids private employers with 15 or more employees from discriminating based on race, sex, religion, or nationality.
Employers implementing a drug-free workplace policy should consider Title VII of the Civil Rights Act.
While challenges to drug testing or drug-free workplace policies under this legislation are relatively rare, it is important for employers to ensure that their programmes treat all employees equally and do not single out any specific racial, ethnic, or gender group for testing or disciplinary actions.
In large workplaces with diverse racial and ethnic backgrounds, it is advisable to include a representative group of employees in the policy formulation process.
This approach helps create a program that is culturally competent, enforced fairly, and considerate of the needs of all employees.
Family and Medical Leave Act (FMLA) of 1993
The Family and Medical Leave Act (FMLA) (PL 103-3) covers all public agencies and private employers with more than 50 workers.
Under FMLA, eligible employees—those who have been with the employer for at least one year and have worked at least 1,250 hours over the past 12 months—are entitled to up to 12 weeks of unpaid, job-protected leave.
This leave can be used for their own serious health condition or to care for a spouse, child, or parent with a serious health condition.
Eligible employees can use their FMLA leave to address substance use disorders and related issues, including:
- Treatment for drug or alcohol addiction.
- Treatment for another physical illness or incapacity related to substance use, such as kidney failure.
- Caring for a close family member undergoing treatment for these conditions.
The FMLA also protects employees from employer retaliation for requesting FMLA leave.
For instance, employers are prohibited from demoting, firing, or denying promotions to employees who take 12 weeks off for treatment of a substance use disorder.
Additionally, employers are forbidden from taking any adverse actions against employees who request time off to care for family members struggling with addiction.
The National Labor Relations Act (NRLA) of 1935
Employers implementing drug-free workplace policies in unionised environments must consider the requirements of the National Labor Relations Act (NRLA).
Enacted in 1935, this law establishes the legal framework governing negotiations between management and labor.
Under the National Labor Relations Act (NRLA), any drug-testing program that affects unionised workers must be negotiated and agreed upon with the union through formal collective bargaining.
This requirement holds even if an employer is mandated to implement a drug-testing program by another federal directive, such as the Omnibus Transportation Employee Testing Act of 1991.
In such cases, the employer must still negotiate with the union to specify the timing of testing and the consequences for employees who test positive for drug or alcohol use.
Employers sometimes anticipate that negotiating a drug-testing agreement or drug-free workplace policy with their unions will be a contentious and adversarial process.
However, it’s worth noting that some unions actually support these programs due to their potential to reduce workplace injuries and accidents.