Employee substance abuse in the workplace is a critical problem. It can trigger increased employer expense due to lack of productivity, absenteeism, low employee morale, elevated health care costs, potential threats to others in the workplace, rising employer legal liabilities and workers’ compensation costs, among other factors.
Federal and state laws recognize the burden drug and alcohol abuse can levy on employers. They also recognize the realities of addiction. To this end, they attempt to offer a balance between protecting business need and employees’ rights, extending to privacy during drug and alcohol testing and offering limited protection from discrimination for recovering drug abusers and for alcoholics.
Drug and Alcohol Testing
Title I of the American with Disabilities Act of 1990 (ADA) specifically permits employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol. But to do so, employers are required to comply with ADA and other federal laws and regulations regarding drug and alcohol use in the workplace.
Employers wishing to conduct drug and alcohol screenings must have a policy that applies evenly to all job applicants and employees. Employers receiving federal funds are required to conduct drug and alcohol testing and must be compliant with the ADA, which requires employers to make a contingent employment offer before testing.[1] Employers with 15 or more employees must also follow the ADA requirements.
Before a contingent offer is made, some pre-employment questions regarding illegal drugs and alcohol use are allowed, such as whether an applicant drinks alcohol or whether he or she is currently using drugs illegally. However, the employer may not ask a job applicant whether he or she is an alcoholic or drug abuser, or about their participation in a rehabilitation program. In addition, job applicants may be required to disclose their use of prescription drugs and/or alcohol to the testing facility, but this information should be kept confidential from the employer, except that the employer can be informed of whether the applicant passed or failed the drug and alcohol test.
After a conditional offer of employment is presented, an employer may ask any question concerning drug or alcohol use, so long as the employer does so for all applicants in the same job category. Such information may not be used to exclude an individual on the basis of the disability (unless there is a business necessity justification.)
Under the Florida Civil Rights Act (FCRA), testing is not required. However, public and private employers may test their employees for drugs and alcohol as part of a drug-and-alcohol-free workplace policy. Employers implementing such a work program should make sure the program includes notice, education and testing procedures for both drugs and alcohol. In addition, an employer must give at least 60 days notice to its employees before starting drug and alcohol screenings as part of a workplace policy. Employers may test as part of pre-employment testing, upon reasonable suspicion, to determine routine fitness-for-duty, and as a follow-up to rehabilitation for up to two years after such a program. Private employers can also perform random testing. Employers must also follow a specific notice protocol and timeline to inform the tested individual if the test results are positive, along with consequences and options.
FCRA conforms to the ADA in that drug and alcohol addiction can be considered a handicap or disability for reasonable accommodations purposes. However, like with the ADA, testing positive does not create an automatic handicap or disability.
Use of Illegal Drugs and Alcohol in the Workplace
While an employer may prohibit the illegal use of drugs and the use of alcohol in the workplace, the employer may not discriminate against persons protected under the ADA and FCRA.
Illegal Drug Use. A person who has used illegal drugs is protected under the ADA when the person:
- has a history of illegal drug addiction but is not currently using drugs and has been rehabilitated;
- is currently enrolled in a drug rehabilitation program; or
- is perceived erroneously as illegally using drugs.
A person is considered to be a “current” user (and therefore not protected under the ADA) if he or she illegally used drugs periodically, during the weeks and months prior to discharge. Also, former casual drug users are excluded from ADA protection, as they are not perceived as “substantially limited” by an addiction.
Alcohol Use. A person who is an alcoholic or a recovering alcoholic may be considered disabled under the ADA. Courts have usually held that alcoholism is a covered disability. However, they have determined that a disability exists only where the impairment substantially limits a major life activity. This evaluation is made on an individual basis. In addition, ADA allows employers to discipline persons who are alcoholic in the same manner they would discipline other employees with poor performance.
A reasonable accommodation for an alcoholic may include a modified work schedule to attend Alcoholics Anonymous meetings, or a leave of absence to seek treatment. However, an employer is not required to provide rehabilitation, excuse misconduct for poor performance, or continue to provide accommodations, such as leave of absence, if the treatment repeatedly fails. Also, an employer has no duty to provide accommodations to employees who do not request accommodations and to employees who deny having a disability.
Direct Threat Defense
The ADA allows employers to require, as a job qualification, that employees not pose a direct threat to the health or safety of other individuals in the workplace. However, while allowed, the screening of employees on this basis may not be merely speculative. It is not sufficient that the person pose a higher threat than others. The person must pose a significant threat. Courts base this determination on several factors.
A Note on Other Applicable Laws
Other federal laws and regulations addressing the use of drugs and alcohol in the workplace may apply to employers of various industries, such as law enforcement positions; airline employees, interstate motor carrier drivers, and railroad engineers (who are also regulated by the Department of Transportation); and safety-sensitive positions regulated by the Department of Defense and the Nuclear Regulatory Commission. Other laws may also apply, such as the Drug-Free Workplace Act of 1988 and the Rehabilitation Act of 1973.
Relief and Claim Processing
Please refer to the Employment Discrimination on the Basis of Disability blog article for information on relief and claim processing.
Due to the specific processes that must be followed and the applicable time limits for agency and court filing, it is in an employee’s best interest to become informed, including engaging the assistance of an attorney to assist in their discrimination matter. An employer facing the defense of a discrimination claim or statutory violation should engage legal counsel to prepare for forthcoming administrative inquiries and potential litigation.
Whether you are an employer or employee, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing a situation involving discrimination on the basis of drug or alcohol disability and offer legal representation, if necessary. Click here to contact an attorney now.
[1] See also the Employment Discrimination on the Basis of Disability blog article.