THE LAW: The Omnibus Transportation Employee Testing Act of 1991 requires employers to randomly administer drug tests to workers in certain safety-sensitive positions. The Drug-Free Workplace Act of 1988 allows states to offer lower workers’ comp premiums to employers that meet drug-testing requirements.
The ADA generally bars employers from performing medical tests on employees or applicants, with a few key exceptions. Employers may test applicants after a conditional employment offer has been made, if they can show the tests are “job related and of business necessity.”
The ADA doesn’t protect employees currently using illegal drugs, but does cover those in drug rehabilitation. Similarly, theprotects employees who undergo drug rehabilitation.
Employers may test those employees when they return to work to ensure they’re drug-free. Employees with a history of drug use may be subjected to more frequent drug screenings. Employers must keep all drug test results confidential.
WHAT’S NEW: The U.S. Department of Transportation (DOT) has proposed new drug-screening procedures for employees who operate vehicles as part of their work. Some of the covered jobs: airline pilot, train engineer, mechanic and anyone with a commercial driver’s license.
Private employers that test other workers should consider adopting the DOT standard.
Additionally, the new regulations require direct observation of employees while they provide drug-test urine specimens. The DOT was concerned that a number of products and devices on the market allowed drug-using employees to dupe the drug testers. (See box below.)
Another factor to consider: 15 states now allow medical marijuana use. Note, however, that regardless of those laws, employers are still free to bar marijuana, tobacco or alcohol use on the job or on company premises.
Advice: If you live in a state that permits medical marijuana use, consult with your attorney to determine how state courts view the situation.
Drug testing in court
Some employers have aggressively attacked workplace drug use. A Tennessee company, Dura Automotive Systems, faces two lawsuits because it chose to test for legal, prescription drugs.
One suit alleges workers who tested positive for legally prescribed painkillers were given a choice: either stop taking the drug or be terminated. Some who gave up their medication quit because they couldn’t continue working.
A second suit alleges the drug testing violates the ADA, and that Dura Automotive failed to keep test results confidential.
The EEOC has sided with employees in both suits.
HOW TO COMPLY: Under the new DOT regs, employers will be able to use either full-service laboratories or instrumented initial test facilities (IITFs). Employers subject to DOT regulations may elect to use IITFs to cut drug-testing costs.
The regulations allow employers to send applicants and employees to IITFs where the specimen and its validity would be tested. The IITFs would inform the employer of all negative tests and specimens rejected for testing. All other non-negative result specimens would be forwarded to a full-service laboratory, which in turn would provide full test results to the company medical officer.
Because IITF testing costs less than similar tests at a full laboratory, the employer saves money.
If an employee in a DOT-regulated safety-sensitive position refuses to take a test or fails one, the employer must stop the employee from performing that job. The employee may not return to the job until he or she has undergone a rehabilitation program overseen by a substance-abuse professional.
To return to work, the employee must have completed the rehabilitation program and provided at least one negative drug test.
Note: DOT regulations give employers the option of returning employees to their old positions, but employees returning fromare normally entitled to their old positions as long as they pass a fitness-for-duty exam consistent with the employer’s . Consult your attorney before refusing to return a worker to his or her previous job.
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