Employee Handbook Mistakes: Not Ensuring That The Employer's Drug Policy Complies With ADA/State Law

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September 12, 2013

Under the ADA, the term "qualified individual with a disability" does not include an individual currently engaged in the illegal use of drugs when the employer acts on the basis of such use. However, a person who has successfully concluded a rehabilitation program, or has otherwise rehabilitated, and is no longer engaged in the illegal use of drugs is not excluded from protection. Further, individuals attending a rehabilitation program are not excluded from ADA coverage. An employer may verify that drug use has stopped through testing procedures.

An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees and may prohibit employees from being under the influence of alcohol or the illegal use of drugs at work. The employer may also hold the employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the entity holds other employees, even if any unsatisfactory performance or behavior is related to drug use or alcoholism. Further, a drug test is not considered a medical examination under the ADA and is therefore not covered by theADA.

However, medical information obtained from an employee in conjunction with a drug test must be maintained in a separate confidential medical file in accordance with ADA requirements.In addition to these requirements, an employer must make sure that its drug and alcohol policies comply with state and local law.

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