The Americans With Disabilities Act (ADA) and alcohol and drug testing in the workplace: When to do it… when you have to stop

While some employers may regard alcohol and drug addiction as self-control issues, the Americans With Disabilities Act emphatically does not. Both addictions are qualified disabilities under ADA. Those who suffer from them are consequently protected against discriminatory behavior by employers.

The Americans With Disabilities Act, requires that you offer equal employment opportunity to rehabilitated alcoholics and drug abusers. However, it does not force you to employ those still active. ADA allows setting policies against use of both substances on the job, and lets you ensure compliance with these policies by doing alcohol and drug testing in the workplace.

The Americans With Disabilities Act sets three stages of employment

It’s important that, however that alcohol and drug testing in the workplace be done at times in the employment cycle that comply with ADA. In an analysis done for the U.S. Dept. of Labor, Attorney Linda Carter Batiste lays out three stages of the process and how they relate, under the Americans With Disabilities Act, to alcohol and drug testing in the workplace.

• In the pre-employment stage, before a job is offered, ADA allows no inquiries of any kind as to disabilities and forbids medical tests for disabilities, including workplace drug or alcohol testing.
• In the second stage, when a job offer has been made and accepted, ADA then lets you make inquiries and require alcohol and drug testing in the workplace, so long as it is required of all entering employees of the same category.
• Then, once employed, ADA allows inquiries about one’s disability and lets you require tests, but only if they are “job-related and consistent with business necessity.”

When ADA says periodic alcohol and drug testing in the workplace is permissible

Should an employee be granted leave to undergo rehabilitation for these addictions, an employer may require periodic testing on the worker’s return, but only if that employer reasonably believes there will be a direct threat to others if testing is not done.

Batiste gives the example of a bus driver recently back from rehab, noting that a person with his job responsibilities would pose a major safety risk should his abusive drinking resume. Under no circumstances, says the Americans With Disabilities Act, may repeated testing be used to harass or intimidate the employee, or to retaliate for claiming protection under the Americans With Disabilities Act.

If, however, repeated tests show negative, the employer may no longer be able to claim a reasonable belief that the driver poses a threat. Once that point is reached, testing would no longer be allowed under ADA. ADA then asks you to presume that, as long as the driver stays on the bus, he’s staying on the wagon.