Disabilities in the Workplace : Drug and Alcohol Use and Testing
1. May my employer regulate my use of alcohol and illegal drugs at the workplace?
Yes. The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA), the major laws covering individuals with disabilities, do not affect your employer’s right to prohibit alcohol and illegal drug use at the workplace. Employment rules prohibiting such drug or alcohol use are permissible.
2. Before I am offered a job, may an employer ask about my drug or alcohol use?
Prior to offering you a job, a potential employer may ask you about your current use of illegal drugs. This is because an individual who currently uses illegal drugs – even due to an addiction – is not protected under the ADA or the FEHA.
However, the employer may not ask you questions that are likely to reveal information about a former addiction, because a history of illegal drug addiction is protected. Such prohibited questions might include: “How often did you use illegal drugs in the past?” “Have you ever been addicted to drugs?” and “Have you ever been treated for drug abuse or addiction?”
Also, a potential employer may not ask you about your past or current lawful drug use if the question may reveal that you have a disability. For example, questions like, “What medications are you currently taking?” or “Have you ever taken AZT?” are barred because they are likely to elicit information about whether you have a disability. (Note: If the employer is administering a test for illegal drugs, it may ask about your lawful drug use in order to screen out false positives. Please see below for more information.)
Similarly, the employer may not ask questions that are likely to reveal information about past or current addiction to alcohol, because alcoholism is a protected disability. Thus, the employer may ask whether you drink alcohol, but not how much or whether you have ever participated in AA or another alcohol rehabilitation program. An employer may ask about DUIs.
3. May an employer require that I take a drug or alcohol test before I’m offered a job? What about after I am offered a job, but before I start working?
An employer may require that an applicant submit to a drug test for illegal drugs at any time prior to employment. Under the ADA and the FEHA, a test for illegal drugs is not considered a “medical examination.” However, all applicants must be treated similarly – an employer may not single you out for a drug test because you have a disability. If you test positive for illegal drug use, the employer may use the results to not hire you or to rescind a job offer.
If you are taking a lawful prescription medication that may trigger a positive test result, you should disclose the medication to test administrators. Any information obtained through drug testing, including any information you provide regarding lawful prescription medications, must be treated as confidential medical information and maintained in separate files.
Unlike a test for illegal drugs, a test for alcohol is classified by the law as a medical examination. For this reason, an employer may not require a test for alcohol prior to giving a job offer.
Once you have been given a job offer contingent upon medical review, your employer may ask about or test for prescription medications or alcohol use so long as all entering employees in the same job category are subjected to the same examination or inquiry.
In California, any post-offer inquiry about prescription drugs or alcohol must be necessary and related to the job you have been offered.
4. May an employer require a drug or alcohol test once I have begun working? What if I test positive?
Testing of current employees for illegal drugs is not regulated by the ADA, but is limited in California and at government worksites by the state and federal constitutions. Testing for illegal drugs is permitted if: (1) the job is “safety sensitive” – for example, the job requires extreme caution, the handling of drugs or a firearm, or access to extremely sensitive information; (2) your employer reasonably believes that your job performance is suffering because you are abusing drugs; (3) you are injured on the job, and your employer needs to determine whether it is excused from paying workers’ compensation because drugs, rather than working conditions, caused your injury; or (4) your employer requires employees who have completed or are participating in drug rehabilitation programs to take random drug tests to ensure they no longer use illegal drugs.
Testing of current employees for alcohol is regulated by the ADA. The employer may test for alcohol if it has a reasonable belief based on objective evidence that your ability to perform the essential functions of the job is impaired by alcohol, or that you pose a direct threat to yourself or others because of your alcohol use. The employer may also make inquiries as needed to assess workers’ compensation liability and to respond to requests for reasonable accommodations related to alcoholism.
As well, an employer may maintain and enforce rules prohibiting employees from being under the influence of alcohol or from engaging in illegal drug use at work. If an employer has a reasonable belief that you are actively using drugs or alcohol at work – for example, if the employer sees you arrive at work drunk or high – then the employer may take discipline or fire you without violating disability laws.
5. I’m on medications for my disability. Can these medications cause a false positive on a drug test? What should I do if this happens?
Some prescription medications may cause a positive reading on a drug test. If you are worried about a false positive, you may want to tell the drug lab conducting the test about the medications you are using. Tell the lab that it must keep this information confidential. You should also ask the lab to conduct additional tests to screen out the possibility that your prescription medicine caused the results. If you do test positive, and you have disclosed the use of prescription medication, you may challenge any subsequent action based on the grounds that the positive result was caused by medication you take under medical supervision. On the other hand, you may wish to keep your information about your medications private and take your chances on the drug test.
6. Can I be fired for using marijuana to treat my disability?
Probably. The ADA and FEHA do not prohibit employers from disciplining or terminating employees for marijuana use, even when the drug is used to treat a disability in accordance with California’s medical marijuana law.
7. Can my employer fire me because I’m an alcoholic?
No. Alcoholism is a disability under the ADA or FEHA if you have an impairment that limits or substantially limits your major life activities. Therefore your employer may not make adverse employment decisions merely because it knows you are an alcoholic.
Your employer can always fire you for the use of alcohol while on the job. And your employer can fire you for misconduct or poor performance, even if it’s related to your alcoholism. For example, you can be fired for being repeatedly late for work, even if you’re late because you’re hung over. An employer may hold an individual who is an alcoholic to the same standards for employment or job performance and behavior that it holds other employees to, even if any unsatisfactory performance is related to the alcoholism.
8. Am I protected under the ADA or FEHA as a rehabilitated drug addict?
Yes. Under the ADA and the FEHA, employers may not discriminate against or exclude individuals based on their past addiction to illegal drugs. However, you must no longer be using illegal drugs. Merely enrolling in a rehabilitation program may not be enough to qualify you as a rehabilitated drug addict under the disability laws; you must have abstained from drug use for a “significant” period of time.
9. What if I am currently employed and want to enroll in a drug or alcohol rehabilitation program?
Job-protected time off for rehabilitation and treatment related to illegal drug addiction may be a reasonable accommodation if you are currently abstaining from illegal drugs. Job-protected time off for rehabilitation and treatment related to alcoholism may be a reasonable accommodation under the ADA or FEHA.
In California, a separate law requires private employers with 25 or more employees to reasonably accommodate employees who wish to voluntarily enter and participate in an alcohol or drug rehabilitation program. This law does not protect you if, because of your current use of alcohol or drugs, you are unable to perform the job or are unable to perform the job in a manner which would not endanger your health or safety or the health or safety of others.