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LEGAL&LEGISLATION; (continued from page 13) What is a Good Controlled Substance Policy The Americans with Disabilities Act's Impact on Employee Drug Testing Despite all the various concerns that have been pointed out, all employers should have a drug and alcohol policy. These policies not only show due diligence on part of the employer to promote a safe working environment but these policies also provide strict rules for employees to follow. The following components are important to include in a member's Drug and Alcohol Policy: The American with Disabilities Act (ADA) is a federal statute that applies to employers with 15 or more employees. The purpose of the ADA is to recognize certain conditions as "disabilities" and force employers to provide reasonable accommodations for these disabilities. The ADA also limits an employer's ability to require employees to participate in medical examinations unless the employer can show that such an examination is part of a "business necessity." Alcoholism and drug addiction are both recognized disabilities under the ADA, thus creating an issue of whether a controlled substance test is a "medical examination" prohibited by the ADA. Although both alcohol and drug addiction are recognized disabilities in the ADA, they are not treated the same. An alcoholic is protected under the ADA even if the alcoholic continues to abuse alcohol. In contrast, a drug addict is only protected by the ADA if he or she has discontinued the use of illegal drugs. According to the Equal Employment Opportunity Commission's (EEOC) Technical Assistance Manual, "an employer may discipline, discharge, or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that he or she is no longer qualifed to perform the essential functions of the job." The same EEOC Technical Assistance Manual states that a drug addict is protected only if the individual is currently receiving treatment for drug addiction or has successfully completed a rehabilitation program AND is no longer using illegal drugs. Therefore, a controlled substance test that returns a positive result for an alcoholic cannot be used to discipline or discharge him or her unless it renders them unable to perform the essential functions of 1. Written Policy; 2. Signed by Employee; 3. Defnes testing procedure and methodology (as stated in your state's statute); 4. Defnes "reasonable suspicion" for testing (based on essential functions of the job and business necessity); 5. Provides an appeal mechanism, such as a confrmation test paid for by the employee; the job. A positive result for a drug addict removes their ADA protections completely, allowing the employer to take adverse action against him or her. In a recent 2013 case in the U.S. District Court for the Western District of Pennsylvania, a judge ruled that random alcohol tests do not violate the ADA so long as it is job related and consistent with a business necessity. In this case, U.S. Steel Corp. was sued by an employee who failed a random alcohol test. The employee claimed that this random test violated the ADA as a discriminatory use of a medical examination. The judge wrote that because of the workplace hazards associated with the plaintiff's position at the company, the random alcohol test was job-related and a business necessity, and therefore not an ADA violation. Ashley L. Felton is an attorney at Safran Law Offces in Raleigh, NC. For more information on drug and alcohol policies or any other employment matters, feel free to contact her at afelton@safranlaw.com. V O L U M E 6. Maintains confdentiality of any results in a fle maintained separately from employment fles; 7. Explains the possible disciplinary procedures or adverse actions that may be taken by the employer if the test returns a positive result; and 8. Refers employee to the state statute regulating such tests and any formal state complaint process should the employee feel the test was wrongly conducted. Finally, make sure that the drug and alcohol policy is applied consistently in all respects. Document your fndings of "reasonable suspicion" in case the employee decides to challenge your decision to test them; also document any disciplinary actions that follow a positive result. Make sure reasonable suspicion is related to the job functions of the individual's position and more than a mere hunch. These policies are helpful tools to protect you and your business from the risks and consequences of employee drug and alcohol abuse, so long as they are implemented and enforced correctly within the bounds of the law. 4 6 I S S U E 6 2 0 1 3 15