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OK to test for alcohol under ADA?

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Q. We suspect some employees come to work drunk. Are workplace alcohol tests lawful under the ADA?

A. The answer to your question depends on the context in which the testing occurs. The EEOC has taken the position that alcohol tests are “medical examinations” under the ADA, the use of which is limited by the statute.

Specifically, at the pre-offer stage of employment, alcohol tests are prohibited. After an employment offer has been extended, alcohol tests are permissible if administered to all individuals in the same job category.

During employment, an alcohol test must be “job related and consistent with business necessity” to be lawful.

A separate question is whether an employer violates the ADA by taking adverse employment action against an applicant or employee based on the results of an alcohol test. According to an interpretive letter recently released by the EEOC, “an employer does not violate the ADA by rescinding a job offer based on alcohol test results if the individual does not have a ‘disability’ within the meaning of the Act or if the test results, as used, are job related and consistent with business necessity.”

The ADA grants employers the right to prohibit employees from using or being under the influence of alcohol while at work.

Thus, according to even the EEOC, “if the results of an alcohol test demonstrate that an employee used or was under the influence of alcohol at the workplace, the employer may discipline the employee as it does all others that violate its substance use policies, regardless of whether the employee has alcoholism and is disabled under the ADA.”

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