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Drug-Free Workplaces: Employer Rights and Responsibilities

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Drug-Free Workplaces: Employer Rights and Responsibilities

By JamieD
Published: December 14, 2009 Updated: February 17, 2011

Most private employers have rights when it comes to testing for illegal substances in the workplace.
Although employee drug testing is generally not required by law, if you choose to exercise your testing rights, you must comply with federal and state regulations that outline your responsibilities.

The first step to establishing a drug-free workplace is understanding what's considered an acceptable and reasonable
drug-testing policy.

Employer Rights

The Drug-Free Workplace Act of 1988 does not require employers to create a drug-free workplace policy or implement drug testing for applicants or employees. For many businesses, however, this has become a standard practice. The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 establish several important federal rights for businesses dealing with drug and alcohol workplace issues. Under current laws, employers:

  • Can require their applicants or employees to take drug tests as a condition of employment

  • Can prohibit the illegal use of drugs and alcohol in the workplace

  • Can deny employment to any current or potential employee who breaks their current drug-free workplace policy

  • Cannot classify a person currently engaging in the illegal use of drugs, but who is not considered an addict, as an "individual with a disability"

In addition to these employer rights, when dealing with the abuse of alcohol, employers:

  • Can classify an alcoholic as an "individual with a disability"

  • Can require alcoholics to meet the same standard of employee conduct that all other employees are expected

  • Can discipline or deny employment to any current or potential employee whose alcohol abuse affects their ability to perform at work

Employer Responsibilities

The Americans with Disabilities, Rehabilitation, and Family Medical Leave Acts also serve to protect employees when it comes to drug and alcohol policies in the workplace.

When creating a drug and alcohol workplace policy, employers should be sure to understand all responsibilities as required by these federal laws.

Under current laws, employers:

  • Cannot discriminate against non-using drug addicts or those with a history of drug addiction

  • Cannot discriminate against employees who are undergoing rehabilitation for drugs or alcohol. Note: The EEOC declares in- and out-patient programs, employee assistance programs, and self-help programs to be applicable.

  • Must make reasonable accommodation efforts for employees who seek help. Note: DOL's Job Accommodation Network provides accommodation guides for employees dealing with Drug Addiction and Alcoholism. 

In addition to these federal requirements, many state and local governments have regulations that affect the ability drug-free workplace policies. In many cases these laws limit or prohibit the ability to conduct drug testing at the workplace. It is important that all employers understand the regulations required by their state and local government.

For information on your specific location, check out the Department of Labor's guide to State and Territory Laws.

For assistance in creating a drug-free workplace policy, the Department of Labor has created Drug-Free Workplace

Advisor that helps employers create customized and effective policies for their workplace. Laws that govern workplace substance abuse policies are constantly changing and updated. Be sure to speak to a lawyer or small business expert to make sure your business is in compliance with the most up-to-date requirements.

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