Drug-Free Workplace Act

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 What is a Drug Free Workplace?

Drug-free workplaces include initiatives which are put into place to protect employees and employers from workplace substance abuse. The Drug-Free Workplace Act of 1988 established guidelines for employers to maintain drug-free workplace environments.

In drug-free workplaces, employees are subject to drug testing. Employees must also be provided confidentiality as well as fair drug testing policies.

Does My Employer Have a Substance Abuse Policy?

Most employers in the United States have developed drug-free workplace programs. Information which relates to these drug-free policies may be covered during an individual’s interview, their orientation, or in the employee handbook.

An employee should make sure to take time to understand the rules which are set by the employer. This is especially important because workplace drug testing and policies are not consistent across the United States and, in some cases, may even differ from company to company.

Which Substance Abuse Laws Concern Me?

Depending upon where an individual works, the rules which govern drug-free workplace programs vary. In some states, there are laws which govern when, where, and how employers are permitted to regulate drugs at work.

For example, in California, the California Drug-Free Workplace Act of 1990 requires all state-related contractors to implement drug-free workplace policies as well as to advocate employee drug awareness education programs.

In addition, if a California employee is terminated due to missing work consistently, they may be barred from receiving unemployment compensation benefits if they were absent due to:

  • Arriving at work intoxicated;
  • Using intoxicants while at work; or
  • Grossly neglecting your work duties while intoxicated.

If an individual has questions regarding the legality of their employer’s drug policies, they should consult with an employment lawyer, who can explain the regulations which exist in their state.

What is the Drug-Free Workplace Act of 1988?

According to the Drug-Free Workplace Act of 1988, certain federal contractors, and all federal grantees are required to agree to provide drug-free workplaces as a precondition of receiving contracts or grants from any federal agency.

It is important to note that there are different components to meet for drug-free workplace requirements, based upon whether a contractor or grantee is an organization or an individual. Organizations will usually have more extensive steps they must take to achieve a drug-free workplace environment.

Does the Act Apply to Every Organization?

No, the Drug-Free Workplace Act does not apply to every organization. It only applies to organizations which have contracts with the United States federal government of $100,000 or more as well as any organization which receives federal grants, regardless of its size.

What Does the Act Require Organizations to Do?

The Drug-Free Workplace Act requires organizations to do certain things, including:

  • As a minimum standard, an employer is required to prepare and distribute formal drug-free workplace policy statements. These policies must outline and clearly describe the prohibition of the manufacture, use, and distribution of controlled substances in the workplace. This policy must also specify the consequences of violations;
  • Establishing a drug-free awareness program. The program should detail:
    • the dangers of substance use;
    • the requirements of the drug-free policy; and
    • information regarding:
      • rehabilitation;
      • counseling; and
      • employee assistance programs (EAPs);
  • The organization is required to ensure that all employees understand their own reporting obligations. For example, under the terms of the Act, employees are required to inform their employer within five calendar days upon conviction of a criminal drug violation;
  • If a covered employee is convicted of a drug violation, the employer is required to notify the federal contracting agency within 10 days;
  • The employer is required to take direct action against an employee for a workplace drug violation conviction, which may include requiring the employee to attend treatment, or imposing a penalty; and
  • The employer is required to continue to make every effort to meet the requirements of the Drug-Free Workplace Act. Failure to comply may result in an employer facing a variety of penalties, including the loss of a contract or grant.

What are State Laws Governing Drug Tests?

The laws governing drug tests may vary by state. For example, drug test laws in California may contain provisions which only apply in that state.

In some states, the laws as well as the Americans with Disabilities Act place restrictions on when employers are permitted to drug test employees as well as what questions employers may ask regarding drug use. Employment attorneys are best able to help employers or employees determine what tests or questions are appropriate under local laws.

In general, the following rules apply regarding drug testing:

  • Job applicants: In general, an employer may require a job applicant to submit to drug testing;
  • Continuing employees: In general, employers are not permitted to require employees to submit to drug tests;
  • High risk job: If an employer demonstrates that a job carries a high risk of injury, such as a transportation job, the employer may require random drug testing; and
  • Employer believes the employee is intoxicated: Employers may also require a drug test if they reasonably believe an employee is impaired while on the job.

When is a Drug Test an Invasion of Privacy?

Employers may be responsible for wrongfully invading their employee’s right to privacy if the test they require is not closely related to their job duties. Employers may also unlawfully invite their employee’s right to privacy if the test they require includes extremely personal questions.

Do Employees Have to Follow the Guidelines in the Act?

Yes, employees must follow the guidelines in the Drug-Free Workplace Act. if an employee fails to comply, it may result in various penalties, for example, being required to:

  • Attend counseling;
  • Rehabilitation;
  • Penalties; or
  • Termination.

Will My Company Get in Trouble for Not Following the Guidelines?

Yes, if a company is not in compliance with the Drug-Free Workplace Act’s guidelines, they may be penalized in one or more ways, which may include having their grant or contract suspended or terminated.

In addition to these possible penalties, an employer may be prohibited from participating in or receiving any future grants or contracts for a period of no more than 5 years.

What Should I Do if I Have Been Accused of Workplace Substance Abuse?

If an individual has been accused of workplace substance abuse, they should consult an attorney to learn about their legal rights. They may also consider contacting a substance abuse organization, including:

Are There Consequences if I Fail a Drug Test?

There may be consequences for failing a drug test, which may vary by state and municipality. In general, if an individual fails a pre-employment drug test, a potential employer may legally refuse to hire the candidate.

If an employee fails a drug test, their employer may legally terminate their employment or prevent them from being promoted. If an individual fails a drug test, their state may also deny their:

  • Unemployment benefits;
  • Worker’s compensation benefits; or
  • Disability benefits.

It is important to be aware that not every employer or jurisdiction has a zero tolerance policy and the consequences of failing a drug test may depend upon the specific employer.

Should I Talk to a Lawyer About the Drug-Free Workplace Act?

It is essential to consult with an employment attorney for any questions or concerns you may have regarding the Drug-Free Workplace Act and how it applies in your workplace. Your attorney can explain the local laws as well as provide guidance for compliance issues.

If you believe your employment was wrongfully terminated and your employer cited the Drug-Free Workplace Act as the reason for your termination, it is important to contact an attorney as soon as possible. It is also important to retain any relevant documents related to your employment and termination.

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