Drug-free workplace initiatives are intended to protect employers and employees from workplace substance abuse, which will be further discussed below. The Drug-Free Workplace Act of 1988 establishes employer guidelines associated with maintaining a drug-free workplace environment. Under this Act, employees are subject to drug testing, and must be provided with confidentiality and a fair drug testing policy in exchange.
Additionally, the Drug-Free Workplace Act of 1988 states that some federal contractors, as well as all federal grantees, must agree to providing drug-free workplaces as a precondition of receiving a contract or a grant from any federal agency. However, the Drug-Free Workplace Act only applies to organizations that have contracts with the federal government of $100,000 or more. This applies to all organizations that receive federal grants, regardless of their size.
Elements for meeting the drug-free workplace requirements are based on whether the contractor or grantee is an individual, or an organization. Generally speaking, an organization must adhere to more extensive steps in order to achieve and maintain a drug-free workplace environment.
Some examples of what the Act requires of organizations include, but may not be limited to:
- A minimum requirement in which organizations must prepare and distribute a formal drug-free workplace policy statement. Such statements must detail and clearly describe the prohibition of the manufacture, use, and distribution of controlled substances in the workplace. Additionally, this statement must specify any and all consequences of violating this policy;
- Establishing a drug-free awareness program which should detail the dangers of substance use, the requirements of the drug-free policy, and information regarding rehabilitation, counseling, and employee assistance programs (EAPs);
- Ensuring that all employees understand their own reporting obligations. An example of this would be how under the terms of the Act, employees must inform their employer within five calendar days upon conviction of a criminal drug violation;
- The employer must notify the federal contracting agency of a covered employee’s criminal drug violation conviction within ten days;
- The employer must take direct action against an employee for a workplace drug violation conviction, such as requiring the employee to attend treatment; and
- Employers must continue to make every effort to meet the requirements of the Drug-Free Workplace Act.
In terms of compliance, all employees are required to follow the guidelines outlined in the Drug-Free Workplace Act. Failure to comply could result in various penalties, such as being required to attend counseling or termination.
Which Substance Abuse Laws Apply To Me As An Employee?
If your employer has received a contract or grant from a federal agency, it is likely that the Drug-Free Workplace Act of 1988 applies to you as an employee. The Act requires businesses that are working with federal agencies to produce drug-free workplaces as a condition of the award. As long as you are on the payroll, and you work on a grant-covered activity, you are subject to the terms of the Act. As such, temporary employees are covered under the Act, although volunteers are not because they are not on the payroll.
The majority of employers in the United States have developed their own drug-free workplace programs. Information associated with such programs and policies will likely be covered during your interview or your orientation, or located in an employee handbook that your employer provides. It is important for you to understand the rules that are set by your employer, especially because workplace drug testing and policies are not consistent across the country and differ by company.
Some states maintain laws that govern where, when, and how your employer can legally regulate drugs at work. An example of this would be how the California Drug-Free Workplace Act of 1990 mandates that all state-related contractors implement a drug-free workplace policy, and to advocate for an employee drug awareness education program. California law has also determined that if you are terminated due to consistently missing work, you may be barred from receiving unemployment compensation benefits if you were absent because of:
- Arriving at work intoxicated;
- Using intoxicants while at work; and/or
- Grossly neglecting your work duties while intoxicated.
When Are Physical Tests And Drug Tests Allowed In The Workplace?
In addition to testing in order to remain in compliance with the Drug-Free Workplace Act, many employers have also begun using physical and drug tests to screen employees in order to determine who can and cannot perform the job duties. Employers, employees, legislature, and the courts have all disputed whether such physical and drug tests are necessary and/or legal.
Under specific circumstances, employers may examine employees in order to determine that they can physically and mentally perform the job duties:
- Prior to Beginning Work: The Americans with Disabilities Act prohibits employers from making a job offer contingent upon passing a medical exam. However, insurers may require employees to undergo physical examinations before health insurance coverage will begin;
- A Continuing Employee: Once an employee has begun their employment, an employer is generally limited in terms of requesting medical examinations. If the employer observes some activity or behavior that could indicate that the employee is not mentally or physically able to perform their job, the employer may legally request a “fitness for duty” test; and
- An Employer’s Access To The Results: The Americans with Disabilities Act limits an employer’s ability to access details that are contained in a medical examination report. Rather, the doctor who is conducting the examination may only report whether the employee is physically able to perform their job duties, with or without restrictions.
To reiterate, state laws may differ regarding drug tests. An example of this would be how California drug test laws contain provisions that are specific only to that state. Generally speaking, both state laws and the Americans with Disabilities Act restrict when an employer may test an employee for drugs, as well as what questions an employer may ask an employee regarding their alleged drug use.
In terms of when an employer may drug test employees, the following are some specific circumstances in which an employer may be allowed to do so:
- Employers generally may require job applicants to submit to drug tests;
- Employers generally cannot require current employees to submit to drug tests;
- If the employer demonstrates that the job carries a high risk of injury, such as a transportation job, the employer may require random drug testing; and/or
- An employer may also require a drug test if they reasonably believe that an employee is impaired while on the job.
An employer could be held responsible for wrongfully invading an employee’s right to privacy if the required test is not closely related to the job duties. An employer can also unlawfully invade an employee’s right to privacy if the required test asks extremely personal questions that are not closely related to the job duties.
What Should I Do If I Have Been Accused Of Workplace Substance Abuse?
In addition to being aware of and asserting your legal rights, you may consider contacting a substance abuse organization. Some examples of such organizations include:
- The Substance Abuse and Mental Health Services Administration (“SAMHSA”);
- Alcoholics Anonymous (“AA”);
- The Focus on Recovery Helpline; or
- The National Council on Alcoholism and Drug Dependence Hopeline.
Do I Need An Attorney For Workplace Substance Abuse?
Whether you are an employer needing assistance in complying with workplace substance abuse laws, or you are being accused of workplace substance abuse, you should consult with an experienced and local wrongful termination attorney.
A local lawyer can inform you of your legal rights and options under your state’s specific laws, and will also be able to represent you in court, as needed.