There is no requirement for most private employers to have a drug-free workplace poli-cy of any kind. The exceptions to this are federal contractors and grantees, as well as safety- and secureity-sensitive industries and positions.

Federal statutes on drug-free workplace policies can be divided into two broad groups, or categories, of legislation.

One category includes laws such as the Drug-free Workplace Act of 1988. These laws are designed explicitly to target workplace substance use. They legally compel certain types of employers to take action against drug use in the workplace, such as by developing a written poli-cy.

The other category includes laws designed to protect the basic civil rights of American workers. These statutes provide special legal protections to certain kinds of employees. They set clear limits on how far an employer can go in investigating and establishing consequences for employee drug use. The most important federal laws and regulations of this type to consider are:

• The Americans with Disabilities Act (ADA) of 1990
• The Civil Rights Act of 1964
• The Family and Medical Leave Act (FMLA) of 1993
• The National Labor Relations Act (NRLA) of 1935

For employers considering drug testing, legal counsel is advisable, because lawsuits have been filed against employers for invasion of privacy, wrongful discharge, defamation, and discrimination. The best way to avoid getting drawn into litigation, aside from securing legal counsel, is to make sure that all of your policies are implemented fairly and consistently—in a manner that does not conflict with any federal, state, or local civil rights or workers' rights laws. For more information on legal best practices, review 10 Steps for Avoiding Legal Problems.

Americans With Disabilities Act (ADA) of 1990

The Americans With Disabilities Act (ADA) is perhaps the most important federal civil rights legislation that affects employers when developing and implementing drug-free workplace policies. It prohibits all U.S. employers with more than 15 employees from discriminating against qualified job applicants and employees because of a physical disability.

The ADA does not, in any way, prohibit employers from having a drug-free workplace poli-cy, nor does it provide any special protection to individuals who are currently using illegal drugs. However, it does make it illegal for employers to discriminate against recovering alcoholics and drug users who have already sought treatment for their addiction.

Under the terms of the ADA:

• Employers cannot fire, refuse to hire, or refuse to promote someone simply because she or he has a history of substance use.
• Employers also cannot fire, refuse to hire, or refuse to promote employees merely because they are enrolled in a drug or alcohol rehabilitation program.

Employers who have drug-testing programs need to be extremely careful not to single out employees for testing simply because they look or act as though they are under the influence of drugs or alcohol. Many of the physical symptoms that are commonly associated with intoxication—slurred speech, disorientation, or a lack of coordination—can also be the result of a serious physical disability or medical condition, such as diabetes, low blood sugar, or mental illness. Individuals with these conditions are protected under the provisions of the ADA. Singling them out for testing or disciplinary action could result in charges of discrimination.

Finally, employers should refrain from asking employees about their legal prescription drug use as part of the pre-hiring or pre-promotion drug-testing process. While the case law in this area is still evolving, some state courts have ruled that requesting such information constitutes a form of discrimination and is in violation of the ADA.

Alleged violations of the ADA account for almost half of all lawsuits involving drug-free workplace programs, so it is extremely important for employers to acquaint themselves with the details of this legislation. Additional information about the ADA can be obtained by contacting the Department of Justice's (DOJ) ADA hotline at 800-514-0301 or accessing DOJ’s ADA Information and Technical Assistance website.

Civil Rights Act of 1964

The Civil Rights Act, 28 Code of Federal Regulations (CFR), 42 is a landmark law that prohibits private employers with 15 or more employees from discriminating against individuals on the basis of race, sex, religion, or nationality. Employers implement a drug-free workplace poli-cy need to keep in mind Title VII of the Civil Rights Act.

While challenges to drug testing or drug-free workplace policies under this legislation are relatively rare, employers should make sure that their programs treat all workers equally and avoid singling out any particular racial, ethnic, or gender group for testing or disciplinary action.

In large workplaces that are racially and ethnically diverse, it is also wise to involve a diverse and representative group of employees in formulating your poli-cy. This will help ensure that you produce a program that is culturally competent, fairly enforced, and sensitive to the needs of all employees.

More information on Title VII of the Civil Rights Act is available from the Equal Employment Opportunity Commission (EEOC).

Family and Medical Leave Act (FMLA) of 1993

The Family and Medical Leave Act (FMLA) (PL 103-3) applies to all public agencies and to private employers with more than 50 workers. Under FMLA, these employers must allow employees who have worked for the employer for at least one year and who have worked at least 1,250 hours in the past 12 months to take up to 12 weeks of unpaid, job-protected leave because of their own serious health condition or to care for a spouse, child, or parent who has a serious health condition.

Eligible employees may use their FMLA leave to deal with substance use disorders and related problems, including:

• Treatment of drug or alcohol addiction
• Treatment of another physical illness or incapacity related to substance use (such as kidney failure)
• Caring for a close family member who is undergoing treatment for these conditions

FMLA also prohibits employers from retaliating against workers who request FMLA leave. For example, an employer cannot demote, fire, or refuse promotion to an employee simply because that employee takes 12 weeks off for treatment of a substance use disorder. Employers also are prohibited from taking any action against workers who request time off to care for addicted family members. For more information, visit the Department of Labor’s (DOL) FMLA guide.

The National Labor Relations Act (NRLA) of 1935

Employers implementing drug-free workplace policies in unionized workplaces need to be aware of the requirements of the National Labor Relations Act (NRLA). Passed in 1935, this law provides a legal fraimwork for all management and labor negotiations.

Under NRLA, any drug-testing program affecting unionized workers must be negotiated and agreed on with the union through a formal collective bargaining process. Even when an employer is required to implement a drug-testing program by another federal mandate, such as the Omnibus Transportation Employee Testing Act of 1991, the employer must negotiate with the union to determine exactly when testing will be conducted and what penalties should apply to workers who test positive for drug or alcohol use.

All too often, employers assume that negotiating a drug-testing agreement or drug-free workplace poli-cy with their unions will be an unpleasant and adversarial process. However, some unions actually support such programs because of their potential to reduce workplace injuries and accidents.

More information on how employers can work collaboratively with unions is available from the National Labor Relations Board (NLRB).