Drug Testing: Keeping It Legal
If you plan to use alcohol and drug testing as part of your workplace substance abuse policy, you should have a clear understanding of the Americans with Disabilities Act (ADA). ADA applies to public and private sector businesses with 15 or more employees.
Many employers have discovered that their substance abuse policy will most successfully reduce costs in lost productivity and accidents when it is developed with ADA’s guidelines in mind.
“The ADA makes it clear that an individual with alcoholism or a history of alcohol abuse has a disability that is protected under the law,” explains M. W., M.D., medical director for OccNet. OccNet is the occupational health service of the Health Alliance. “An individual is considered disabled if the condition substantially limits a major life activity.” If an applicant or employee has a disability as defined by the ADA, the employer must determine if the person can perform the essential functions of his or her job, with or without reasonable accommodation. “It’s also important to note,” adds Dr. W, “that addiction to illegal drugs is not covered under ADA.”
The ADA states that you may not refuse to hire qualified applicants because of alcoholism, and may not punish an alcoholic employee more severely than nonalcoholic employees for the same conduct. The act says that an employer can be justified, however, in terminating employees for reasons that are “job-related and consistent with business necessity” or if employees pose a risk to the health and safety of others that cannot be reduced by reasonable accommodation.
The employer must make “reasonable accommodation” for alcoholics. However, Dr. W reminds “an employer is never required to facilitate employee alcoholism or tolerate substandard performance resulting from alcoholism.” For example, you need not allow an employee to come in late due a binge the night before. However, you should try to allow time off for participation in Alcoholics Anonymous meetings.
“Reasonable accommodation also may include periodic alcohol or drug testing, counseling, modification of job responsibilities, and/or increased supervision,” says Dr. W. Alcohol must also be prohibited in the workplace.
Addiction specialists say that it makes economic sense for businesses to provide treatment for employees who have alcohol and drug problems. Such employees may do a good job when they are not using illegal substances, but their work quality and productivity greatly deteriorate when they are drinking or using drugs. The cost of terminating an addicted employee and hiring and training a replacement can be considerable; therefore, it’s thought to be cost effective, and morally the right thing to do, to put your efforts into correcting the problem at hand.
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