Drug Prescriptions and Addictions
According to the Courts, drug tests are considered a "search" as they involve searching a subject's urine, hair or blood. When conducting this type of search, it is possible that the subject's legal use of prescription drugs may become known. During the drug testing process you will be asked to disclose any drugs you have taken. If your drug test comes back positive, you will be required to further explain your lawful use of drugs, such as whether they are to treat an illness or disability. It is possible that this disclosure may result in discrimination against you, for example, if you are denied a promotion or job that you are qualified for as a result of your disability. This situation is a serious violation of your civil rights. The American Disabilities Act (ADA) was enacted in 1990 to protect the rights of people with disabilities.
The ADA is application to government employers and private companies with more than 15 employees. This legislation built on existing employment law by offering additional protection to American workers with disabilities. This is estimated to apply to around 43 million people, which is approximately one-sixth of the United States population.
The definition of disabilities includes psychological problems, including schizophrenia and depression. It also covers drug and alcohol addictions. If you have been diagnosed with a psychiatric condition and, as a result of this diagnosis, you have been prescribed certain drugs by a registered health professional, then you will be protected by the ADA. In these circumstances, people are not allowed to test you for prescription medications and have no right to pry into your medical history in order to find out about your use of these drugs. This prohibition exists because the information may be used to discriminate against you on the basis of a disability. Because recovering drug or alcohol addicts are considered "disabled" by the ADA, they are extended the same protection. Individuals who are currently taking illegal drugs or unauthorized prescription drugs are not covered by the ADA. This type of drug use is specifically excluded.
Drug Use in the Past v Present
The terms of the ADA distinguish between drug use in the present and past, as well as using prescription drugs in a legal and illegal manner. If a "drug addict" has used an illegal drug sometime in the "past" then they are considered to be disabled and are therefore protected by the ADA. On the other hand, illegal drug use in the "present" is not covered by the legislation because it is not a disability. Similarly, if someone used an illegal drug in the past but they were not addicted, then it is also not a disability and the person is not protected. Prescription drugs must be taken under the direction of a health care professional in order to be considered legal and therefore protected. Using prescription drugs in any other way will not be covered by the ADA.
Employers are not allowed to consider the histories of recovering drug or alcohol addicts when they are deciding whether or not to hire you. This is because such addictions are considered disabilities according to the ADA. If a prospective employer questions you about using drugs or alcohol in the past as part of a job interview (including asking whether you were addicted or had treatment), then they will be violating the ADA and may be liable to a discrimination suit. Their liability may exist regardless of whether or not you are hired. However, it's important to note that a potential employer can ask you about whether you are currently using drugs because this is illegal and therefore not covered by the ADA.
Questions that you CANNOT be Asked in a Job Interview
- Do you use prescription drugs? Which ones?
- Do you have a history of drug or alcohol abuse?
- Have you undergone treatment for drug or alcohol abuse?
- Are you a drug addict or an alcoholic?
- Do you have a police record for drunk driving?
Questions that you CAN be Asked in a Job Interview
- Do you like to drink alcohol?
- Do you take illegal drugs currently?
- In the previous 30 days, have you smoked marijuana?
- Have you, at any time in the past, been convicted of driving under the influence?
- Have you, at any time in the past, lost your driver's license?
- Have you, at any time in the past, been convicted of a drug or alcohol related felony?
Definition of "Current Use"
The term "current use" has not been clearly defined by the ADA. We do know that it does not just refer to using drugs on the day that the drug test takes place, or even within a few weeks prior to the testing. According to the Equal Employment Opportunity Commission (EEOC), "current use" involves "the illegal use of drugs that has occurred recently enough to indicate that the individual is actively engaged in such conduct". This definition would cover known occurrences of drug taking while on the job, as well as situations where job performance was impaired due to drug taking. It also covers a positive result to a urine drug test. Drug use that occurred in the past is usually taken to mean than it happened more than six months ago.
Despite the fact that there is no set definitions of current and past, "current" is meant to be sufficiently broad so that people who receive a positive test result are not able to argue that they have a disability (and can therefore not be punished) under the ADA. It is designed to prevent positive subjects from quickly enrolling in treatment in order to avoid penalties. In reality, it may still be a wise move to sign up for a rehab program as soon as you find out about a positive test result.
Employers may test people with a "disability" as long as they are only testing for the current use of illicit drugs, and that the people with disabilities are not the only ones who are tested. In other words, the test must apply equally to able and disabled employees. Employers cannot test for use of prescription drugs, unless they suspect that an employee is using these drugs improperly or illegally, for instance, using drugs for which they don't have a prescription.
The Disability of Drug Addiction
The ADA makes it illegal to discriminate against people who are recovering from a drug or alcohol addiction. According to this legislation, "recovering" means that the person is currently taking part in, or has already completed a rehabilitation or treatment program and has stopped taking illegal drugs. The ADA doesn't go so far as to make employers hire recovering drug addicts. Extending the law in this way would be ridiculous. What it does do is make it illegal for an employer to reject a job applicant purely because they have had a drug or alcohol addiction. There are however, some exceptions to this law. If you have a history of drug or alcohol addiction, then an employer can refuse to hire you for specific occupations (such as policing), where they are able to demonstrate that having drug-free staff is a necessity.
The ADA also applies to protect employees from erroneous accusations of using drugs. For instance, assume that there is a (false) rumor going around your workplace and this leads your boss to believe that you have an addiction to illegal drugs. The ADA offers you some protection and considers you to have a disability. However, if your boss merely believes that you are casually using illegal drugs and you don't have an addiction, then you will not be considered to be "disabled" according to the ADA and will therefore not be able to rely upon its protection.
This means that employers are not allowed to reject a job application or take any adverse action against employees who have a "disability" under the ADA (which includes a drug addiction). Employers do however, have the power to reject job applications and fire existing employees who are currently taking illegal drugs or using prescription drugs in an illegal manner.
The ADA offers increased privacy protection to employees and job applicants who have disabilities when it comes to access to medical information. Employers are prohibited from enquiring about your medical history and the legal ways that you may have used prescription medications in the past. The reason behind this is that they may use this information in a discriminatory fashion. The only exception to this rule occurs in situations involving a genuine public safety or health concern. The fact that the ADA classifies drug and alcohol addictions as disabilities places significant restrictions on the ways that employers can pry into the previous drug and alcohol habits of employees or potential employees. This limitations apply to urine drug tests, the reviews conducted by a Medical Review Officer into a positive test result, and questions that are permissible in job interviews.
The ADA defines urine tests that are conducted for the purpose of detecting alcohol consumption as a medical examination. This means that it is restricted. Tests that are conducted to detect illegal drug use on the other hand, are not defined as a medical examination and are therefore allowed as long as the testing process doesn't discriminate on the basis of disability. This classification of medical examinations exists as a result of the fact that alcohol is legal and illicit drug use is illegal.
Under the ADA, a disabled person applying for a job with a company can only be asked to take part in a medical examination after they have been offered a job and before they begin their employment with the company. It can also only take place if this is a step that all new employees must go through. During this stage, the employer is permitted to test the new employee for alcohol consumption and this will not be viewed as a violation of the ADA. Because urine tests designed to reveal illegal drug consumption are not considered a medical examination for the purposes of the ADA, conducting these tests on job applicants is allowed provided that the tests are administered consistently and don't differentiate between able and disabled applicants.
The situation can become quite complicated if a disabled person returned a positive drug test result in the process of a job application. In some cases there may be a legitimate reason for the positive result, for example, it may have revealed a prescribed medication. For this reason, if you find yourself in this situation, you will generally be invited to discuss the positive drug test result with the Medical Review Officer (MRO) working for the company. This meeting is classified as a "medical examination" under the terms of the ADA, and therefore it is not allowed until after the company has given you a job offer. This creates a strange situation where the company can legally perform a drug test before offering you a job, but they are prohibited from making a MRO inquiry into a result that comes back positive until after the offer is made. Furthermore, the inquiry by the MRO is required by the Mandatory Federal Guidelines. Many companies avoid this bizarre situation by conducted drug tests after the job offer has been made, but before the new employee commences working.
Alcohol testing is somewhat different to illegal drug testing in that it is classified as a "medical examination" according to the ADA. The result of this classification is that the many restrictions and requirements involved conducting medical examinations also apply to alcohol testing. Testing a job applicant for alcohol consumption can only take place in the window after the offer of employment and before they commence working. In other word, employers can perform alcohol tests after making a job offer in situations where the offer is conditional upon a negative test result.
This is further complicated by the fact that a positive result to an alcohol test does not in itself form a sufficient justification for refusing to offer the subject employment. The only exception to this may be for positions that are safety-sensitive. This is due to the legality of alcohol and the fact that the applicant may be recovering from an alcohol addiction, which is considered a disability according to the ADA. The rights of the employer to take steps against someone who tests positive for alcohol will depend on the specific situation. To be justified in denying employment as a result of alcohol use, the employer will be required to have more evidence than just the positive test. They may need to show that the applicant is unqualified or unable to perform the job satisfactorily. They may also attempt to demonstrate that alcohol use will constitute a "direct threat to the health or safety of others in the workplace". Another method may be for the employer to argue that the applicant has not yet recovered from alcohol addiction and is therefore not entitled to the protection of the ADA. Also, an employer may also claim that an employee disobeyed a company policy, for example, a rule that prohibits drinking while working.
If you are unlucky enough to test positive for alcohol use and you are currently in a treatment program or you have recently completed one, it is possible that the rights you are entitled to according to the American Disabilities Act will be violated. In this situation it is a very good idea to take detailed notes recording what has happened. The notes you take will help substantially if the matter goes to court or arbitration.
Use of Prescription Drugs
Under the ADA, the right to lawfully use prescription drugs is protected. An employer has no right to pry into your history of prescription drug use. If they do this and you take them to court as a result, the court will usually assume that the employer had a discriminatory basis for their actions unless they can show a strong "business necessity" for acquiring that knowledge. When drug testing first began, employers would often ask all existing and potential employees to report the prescription drugs that they take. It is unlikely that this type of requirement would be considered legal if it were challenged today. There is one loophole that businesses may use however, and that is a concern for health and safety. They may legitimately contend that using prescription drugs can impair the functioning of the employee in a way that may be dangerous. In these cases, the employer has an obligation to prove that inquiring into the use of prescription drugs is a business necessity.
The rule against workplace discrimination on the basis of a disability has two exceptions. An employer can deny employment to a recovered drug addict if they can show that this decision is related to the nature of the job and in line with business necessity. This may involve refusing to put a recovered drug addict in a safety sensitive position where people may be injured should the employee relapse. An employer may also be entitled to fire or refuse employment to a recovered alcoholic if they began using alcohol again and this impacted on their job performance or their qualifications for a particular position.
Employers are allowed to enforce policies banning the use of drugs or alcohol in the workplace or while employees are travelling to and from work. An employee who breaks these rules may face disciplinary action or be fired and this would not be considered a violation of the ADA. Disabled employees who continue to abuse drugs or alcohol will generally be required to abide by the same performance and conduct standards as non-disabled employees